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THE    RELATION    OF 

INTERNATIONAL     LAW 

TO    THE 

LAW    OF    ENGLAND 

AND     OF    THE 

UNITED    STATES    OF    AMERICA 


LONDON : 

McBRIDE,    NAST    &    COMPANY,    LTD  , 

ROLLS    HOUSE,    BREAMS   BUILDINGS,    EC. 


THE  RELATION  OF 

INTERNATIONAL    LAW 

TO  THE 

LAW  OF  ENGLAND 

AND   OF  THE 

UNITED  STATES  OF  AMERICA 

A    STUDY 

BY 

CYRIL    M.    PICCIOTTO. 

Sometime  Scholar  of  Trinity  College,  Cambridge  ;     Whewtli  (International  Law)  Scholai 
oj  the  University,  and  of  the  Inner  Temple,  Uarrister-at-Lan' . 


WITH     AN     INTRODUCTION 

BY 

L.    OPPENHEIM,    LL.D., 

Whewell  Profasor  of  International  Lam  in  the  University  ol  Cambridge  , 
Member  of  the  Institute  oj  International  Law,  etc.,  etc. 


NEW    YORK: 

M  c  B  R  I  D  E,    N  A  S  T     &     C  O  M  P  A  N  Y, 

31,     UNION     SQUARE     NORTH. 
1915- 


\Z<^'^ 


^,i>^ 


PRINTED     IN    ENGLAND 
AT    THE    CHANCERY    LANE   PRESS,  ROLLS  PASSAGE,  LONDON,  E.G. 


CONTENTS 

PAGE 

Author's  Preface 7 

Introduction  by  Prof.  Oppenheim      9 

Chapter  I.— General  Notions 13 

The  Nature  of  the  Problem — The  Basis  of  Inter- 
national Law — International  Law  a  Law  between 
States — Municipal  Law  the  means  of  giving  effect 
to  rules  of  International  Law — Westlake  and  others 
on  Relation  between  the  two  kinds  of  Law — The 
Austinian  View  of  Law. 

Chapter  II. — International    Law    in    Courts    of 
Prize  and  Admiralty  26 

Holland  and  Westlake  on  the  Law  of  Prize  Courts — 
The  Maria,  1799 — The  IValsingham  Packet,  1799 — 
The  Recovery,  1807 — Observations  of  Sir  J.  Mackin- 
tosh, 1807— The  Fox,  181 1 — The  Girolamo,  1834 — 
Cope  V.  Doherty,  1858 — The  Annapolis,  1861 — Sir 
R.  Phillimore — Westlake — Professor  Oppenheim — 
The  Chile,  1914 — The  Marie  Glaeser,  1914 — The 
Berlin,   191 4. 

Chapter  III. — International    Law    and    Acts    of 
Parliament  in  ordinary  Courts 48 

Anglo-American  Telegraph  Case,  1877 — Distinction 
between  legal  and  diplomatic  Remedy — Mortensen 
V.  Peters,  1906 — Late  Mr.  Justice  Stephen  on  Acts 
of  Parliament — Whether  Act  of  7  Anne  gives 
exemption  from  criminal  liability? 

Chapter  IV. — Treaties  which  require  an  Act  of 
Parliament  for  their  enforcement       59 

Place  of  Treaties  in  English  and  American  Law — 
Ratification   of   Treaties  in    England    distinct    from 


327055 


6  CONTENTS 

their  approval  by  Parliament — When  may  the  Crown 
bind  subjects  by  Treaty — Maitland — Treaties  which 
have  been  rendered  effective  by  Act  of  Parliament — 
Sir  W.  Anson  on  the  extent  of  the  Prerogative — The 
Padement  Beige,  1879 — Walker  v.  Baird,  1892 — 
Difficulty  of  deciding  which  Treaties  do  and  which 
do  not  affect  private  rights — Effect  of  23  (h)  of 
Fourth  Hague  Convention  on  Disability  of  Alien 
Enemy  in  English  Court. 

Chapter  V. — International  Law  and  the  Common 
Law  of  England       75 

International  Law  no  longer  rests  on  Law  of  Nature 
— Act  of  7  Anne  and  the  Common  Law  :  Triquet  v. 
Bath,  1764 — Heathfield  v.  Chilton,  1867 — Black- 
stone — Viveash  v.  Becker,  1814 — Act  of  Anne 
declaratory  of  Common  Law — Doctrine  of  Assent — 
Wolff  V.  Oxholm—R.  v.  Keyn— Do.— Do.— Do.— 
Do. — Do. — The  Modern  Rule — West  Rand  v.  the 
King — -Question  one  of  Constitutional  Law — Judg- 
ment of  Lord  Alverstone — The  Modern  Text-writer 
— Strict  Proof  of  Assent — Limitations— Mode  of 
Proving  International  Law — International  Law  a 
Question  of  Fact — International  Law  a  Source  of 
Law — Connexion  between  English  and  American 
View. 

Chapter  VL — International     Law    and    Law    of 
United  States  109 

No  General  Statement  possible — Incorporation  by 
U.S.  Constitution — Treaties  part  of  the  Law  of  the 
Land — Ware  v.  Hylton — Treaty  on  same  level  as 
Act  of  Congress — Foster  v.  Neilson — Whitney  v. 
Robertson — Legal  and  diplomatic  Remedy- — The 
Panama  Canal  Dispute — Act  of  Congress  overrides 
customary  International  Law — Presumption  in  con- 
struing Act  of  Congress — Power  of  Congress  to 
punish  offences  against  Law  of  Nations — Paquete 
Habana — Professor  Oppenheim's  View — Mr.  Wil- 
loughby's  View. 

General  Conclusions      125 

Index  127 


«      « 


.        J   ' ,    ^    '      •• 
>    ,    >      i   1     >  > 


PREFACE 

This  book  is  an  attempt  to  answer  a  question  of  some 
difficulty,  partly  of  International  and  partly  of  Constitu- 
tional Law,  which  the  Author  thinks  has  not  yet  been 
adequately  dealt  with.  The  learned  papers  of  Dr. 
Holland  (in  his  "  Studies  in  International  Law"),  of  the 
late  Dr.  Westlake  (in  the  Law  Quarterly  Review),  and 
of  Mr.  J.  B.  Scott  and  Mr.  W.  W.  Willoughby  (in 
the  American  Journal  of  International  Law)  are,  it  is 
believed,  the  most  valuable  English  and  American  con- 
tributions to  the  subject. 

It  is  hoped  that  the  book  may  have  a  less  purely 
academic  interest  for  the  practising  lawyers  of  England 
and  the  United  States  than  is  possessed  by  most  works 
on  topics  of  International  Law.  The  matter  with  which 
it  deals  has  frequently  come  before  the  Courts  of  both 
countries,  and  in  England,  at  least,  assumed  great  and 
practical  importance  as  recently  as  1905  in  a  case  which 
arose  out  of  the  Boer  War.  The  relevant  decisions  of 
the  present  Prize  Court  have  been  incorporated. 


8  -• 


PREFACE 


.,  rl  wish-tot^ketliis "opportunity  of  thanking  Professor 
Oppenheim  for  the  unfailing  help  and  encouragement 
he  has  so  freely  given  me,  and  more  especially  for  per- 
mission to  embody  the  results  of  a  paper  on  Orders  in 
Council  read  by  him  before  the  Cambridge  Law 
Society;  also  my  friend  Mr.  P.  Quass,  of  the  Inner 
Temple,  for  the  assistance  he  has  given  me  in  the  pre- 
paration of  the  index.  C.  M.  P. 

2,  Dr.  Johnson's  Buildings,  Temple. 
Hilary,  19 15. 


INTRODUCTION 

THE  relations  between  International  Law  and  Municipal 
Law,  in  spite  of  the  great  importance  of  the  matter,  have 
formerly  never  ex  professo  been  enquired  into.  It  may 
be  said  that  it  is  only  during  the  last  twenty-five  years  that  a 
few  writers  have  given  attention  to  this  subject,  and  there  is 
no  unanimity  amongst  them  with  regard  to  it.  There  are  some 
publicists  who  assert  that  International  Law  is  above  Municipal 
Law,  and  that,  therefore,  the  rules  of  the  former  are  stronger 
than  the  rules  of  the  latter.  Accordingly,  a  Municipal  Court 
would  have  to  apply  all  customary  and  conventional  rules  of 
International  Law  whether  or  no  they  are  expressly  or 
implicitly  adopted  by  the  Municipal  Law  of  the  State  concerned, 
and  even  in  the  case  where  there  is  a  decided  conflict  between 
a  rule  of  Municipal  Law  of  such  State  and  a  rule  of  International 
Law.  The  maxim  of  this  school  of  thought  is  :  "International 
Law  in  every  case  overrules  Municipal  Law."  It  is  asserted, 
mostly  by  Continental  writers,  that  this  maxim  has  been  recog- 
nised by  the  law  of  England,  as  well  as  by  the  law  of  the  United 
States  of  America. 

However,  this  opinion  would  seem  to  be  more  a  pious 
desideratum  than  the  result  of  scientific  investigation  and  prac- 
tical consideration.  International  Law  and  the  Municipal  Law 
of  the  several  States  are  so  essentially  different  that  it  would 
be  strange  if  any  Municipal  Law  had  adopted  the  maxim 
"International  Law  in  every  case  overrules  Municipal  Law." 
International  Law  is  a  body  of  rules  which  exclusively  concerns 
the  legal  relations  between  the  several  civilised  States  ;  whereas 
the  Municipal  Law  of  every  State  is  a  body  of  rules  which  con- 


o 


V 


lO  INTRODUCTION 

cerns  the  legal  relations  of  the  citizens  with  one  another  and 
also  the  legal  relations  between  the  citizens  and  that  State.    The 
sources    of    International   Law    are    international    customs    and 
International  conventions ;  whereas  the  sources  of  the  Municipal 
Law  of  a  State  are  customs  which   have  grown  up  within   the 
boundaries  of  that  State,  and  statutes.     For  this  reason,  neither 
'can   International   Law   Per   se  create   or   invalidate   Municipal 
Xaw,   nor  can  Municipal  Law  per  se  create  or  invalidate  Inter- 
national  Law.      International  Law   and   Municipal   Law   are   in 
fact   two   totally   and   essentially  different  bodies   of  law   which 
have  nothing  in  common  except  that  they  are  both  branches — 
"But   separate  branches — of   the   tree   of  law.      Of  course,  it   is 
possible  for  the  Municipal  Law  of  an  individual  State  by  custom 
or  by  statute  to  adopt  rules  of  International  Law  as  part  of  the 
law  of  the  land,  and  then  the  respective  rules  of  International 
Law  become  ipso  facto  rules  of  Municipal  Law.     For  instance, 
the  rules  of   International  Law  concerning   Prizes  have  m  this 
way  been  adopted  by   English  law,  with  the  consequence  that 
every    new    Prize   Law    rule    of    International    Law    ipso    facto 
becomes  a  rule  of  English  law.     Wherever  and  whenever  such 
adoption  has  not  taken  place  Municipal  Courts  cannot  be  con- 
sidered to  be  bound  by  rules  of  International  Law,  because  the 
latter  have  per  se  no  power  over  the  Municipal  Courts.      And 
if  it  happens  that  a  rule  of  Municipal  Law  is  in  indubitable  con- 
flict  with   a    rule   of   International   Law,    the    Municipal    Courts 
must  apply  the  former.      If,  on  the  other  hand,  a  rule  of  Inter- 
national  Law    regulates    a    fact    without    conflicting   with,    but 
at   the   same   time  without    expressly    or    tacitly    having    been 
adopted    by.    Municipal    Law,    Municipal  Courts    cannot  apply 
such  rule  of  International  Law. 

TNow  whether  or  no  the  Municipal  Law  of  a  certain  State 
has,  by  custom  or  statute,  adopted  the  rules  of  International 
Law  in  toto  or  in  parte  is  a  question  of  fact  which  can  only  be 
answered  by  a  minute  enquiry  into  the  practice  of  the  Courts 


INTRODUCTION  1 1 

and  the  legislation  ol  each  State. ^To  my  knowledge,  no  really 
thorough  and  all-embracing  enquiry  had  as  yet  anywhere  been 
made,  although  in  England,  in  the  United  States  of  America, 
and  in  Germany  a  few  learned  and  valuable  contributions  con- 
cerning the  subject  existed.  For  this  reason,  some  time  ago, 
when  Mr.  Picciotto  consulted  me  with  regard  to  a  subject  for 
his  Whewell  Scholarship  Dissertation,  I  recommended  him  to 
choose  "  The  Relation  of  International  Law  to  the  Law  of 
England."  That  the  categorical  assertion  "  International  Law 
is  part  of  the  law  of  England  and  the  United  States  of  America" 
is  not  correct  is  evident,  because  there  are  well-known  cases 
in  which  English  and  American  Courts  had  to  refuse  the  appli- 
cation of  rules  of  International  Law.  On  the  other  hand,  there 
was  no  doubt  that  English  as  well  as  American  law  had  adopted 
the  rules  of  International  Law  to  a  great  extent ;  but  exactly 
to  what  extent  had  not  been  ascertained,  at  any  rate  not  with 
regard  to  English  law.  Mr.  Picciotto  has  now  filled  the  gap 
by  the  present  study-  Without  identifying  myself  in  every 
detail  with  the  opinions  of  Mr.  Picciotto,  I  believe  that  the 
results  of  his  enquiry  represent  on  the  whole  the  true  relation 
between  International  Law  and  the  Law  of  England.  By 
enquiring  separately  into  the  relations  of  International  Law  to 
the  Prize  Law,  the  Statutory  Law,  and  the  Common  Law,  he 
has  pursued  the  right  method.  And  by  drawing  attention  to 
the  important  change  which  the  conception  of  International  Law 
has  undergone  since  the  second  half  of  the  nineteenth  century 
he  has  supplied  an  explanation  of  the  difference  in  the  views 
which  are  manifest  in  the  judgments  of  the  Courts  before  and 
after  the  .second  half  of  the  nineteenth  century.  It  is  evident 
that  the  views  of  Courts  which  considered  International  Law 
to  be  the  dictates  of  a  law  of  Nature  and  of  right  reason  must 
largely  diverge  from  the  views  of  such  Courts  as  considered 
International  Law  to  be  a  body  of  rules  created  by  international 
custom  and  international  conventions.     However  this  may  be, 


\ 


12  INTRODUCTION 

so  much  would  seem  to  be  certain,  that  Mr.  Picciotto's  study 
has  finally  dispelled  the  illusion  that  International  Law  to  its 
whole  extent  is  part  of  the  law  of  England. 

As  regards  the  United  States  of  America,  it  is  to  be  taken 
into  consideration  that  the  President  cannot,  without  previous 
consent  of  the  Senate,   ratify   any   international  treaty.        The 
indispensable  consent   of  the  Senate   to   every    treaty   explains 
the  fact  that,  according  to  Article  VI  of  the  American  Constitu- 
tion,   all  international    treaties    of    the    United    States    are  the 
supreme  law  of  the  land.     However,  in  case  an  Act  of  Congress 
contains  rules  not  in  agreement  with  stipulations  of  a  previous 
international  treaty,  the  American  Courts  consider  themselves 
bound  by  the  Act  of  Congress,  and  not  by  the  stipulations  of  the 
previous  treaty.     It  is  obvious  that,  according  to  the  practice 
of  the    Courts    of   the    United    States,    International    Law  and 
Municipal  Law  are  of  equal  force,   with  the  consequence  that 
new    rules    of   International    Law   supersede    rules  of   previous 
American  Municipal  Law,  and  new  rules  of  American  Municipal 
Law  supersede  rules  of  previous  International  Law.      For  this 
reason  the  assertion  of  American  writers  that  International  Law 
in  toto  is  part  of  the  law  of  the  United   States  is  misleading. 
It  would  be  more  correct  to  say  that  International  Law  is  part 
of  the  law  of  the  United  States  in  so  far  as  it  is  not  in  conflict 
with    the    American    Constitution,     and    subsequent    American 
Municipal  Law  does  not  enact  rules  in  opposition  to  previous 
International  Law.     This  condition  of  affairs   is  by  no  means 
satisfactory,   since  at  any  time  any   rule  of  International   Law 
which  has  hitherto  been  a  rule  of  American  law  can  be  made 
ineffective  by  an  Act  of  Congress. 

L.  Oppenheim. 


The  Relation  of  International  Law 

to  the  Law  of  England  and  of  the 

United    States   of  America 


CHAPTER  I. 
General     Notions. 

1.  An    antithesis    with  which    international    lawyers  The  Ma»«r« 

are  often  called  upon  to  deal  is  that  between   Inter- °^  **** 

Problem. 

national  Law  and  Municipal  Law.  It  is  obvious  that 
it  is  of  the  highest  importance  to  determine  adequately 
the  true  relation  subsisting  between  these  two ;  for 
whether  we  view  International  Law  from  the  standpoint 
of  Municipal  Law  (as  when  the  law  of  the  State  has 
insufficiently  provided  for  its  international  obligations), 
or  Municipal  Law  from  the  standpoint  of  International 
Law  (as  when  International  Law  has  given  a  State  a 
right  about  which  her  Municipal  Law  is  silent),  it  is 
clear  that  no  useful  result  can  be  reached  unless  there  is 
an  unshakeable  basis  of  true  doctrine  upon  which  argu- 
ment may  proceed. 


H 


INTERNATIONAL    LAW 


? 


The   BaaiB 
of  iBter- 

national 
Law. 


I  In  some  States  of  the  society  of  nations  the  question 
presents  less  difficulty  than  in  others.  For  example,  the 
Constitution  of  the  United  States  setdes,  at  any  rate,  the 
position  of  treaties.  In  this  country  there  is  no  such 
precision.  The  organic  and  continuous  unity  of  our  legal 
development  has  been  unfavourable  to  a  system  of  codi- 
fication, while  it  has  given  every  encouragement  to 
judicial  precedent  as  an  important  source  of  law  pro- 
ceeding upon  ascertainable  and  scientific  rules.  The 
result  of  this  has  been  that  in  order  to  elicit  the  true 
facts  of  the  relation  in  which  Great  Britain  deems  her 
law  to  stand  to  the  Law  of  Nations,  we  must  attempt 
to  collect,  and,  if  need  be,  to  reconcile,  judicial  pro- 
nouncements contained  in  cases  in  which  questions  of 
International  Law  have  arisen,  from  the  earliest  date  at 
which  such  cases  appear  in  the  books. 

The  problem,  then,  which  will  now  be  considered  is 
— What  is  the  relation  of  International  Law  to  Engrlish 
Law,  what  is  its  place  in  our  Courts,  and  what  rules  of 
evidence  govern  its  proof  in  those  Courts.^ 

2.  International  lawyers  fall  roughly  into  three  main 
schools  of  opinion — the  Naturahsts,  the  Positivists,  and 
the  Grotians.  The  doctrine  of  the  Naturalists  is  (i) 
that  International  Law  is  a  body  of  moral  rules  for  the 
guidance  of  States  with  one  another ;  (2)  that  its  method 
is  a  priori ;  and  (3)  that  it  is  proveable  by  the  writings 
of  the  jurists,  who  arrive  at  their  results  rather  by  an 
application  of  moral  first  principles  than  by  any  serious 


GENERAL    NOTIONS  '  1 5 

deductions  from  tact  and  the  practice  of  States.  Inter- 
mediate between  the  other  two  come  the  Grotians.  The 
distinction  is  well  put  by  the  late  Mr.  Hall' : — 

"  Two  principal  views  may  be  held  as  to  the  nature 
and  origin  of  these  rules.  They  may  be  considered  as 
an  imperfect  attempt  to  give  effect  to  an  absolute  right 
which  is  assumed  to  exist  and  to  be  capable  of  being 
discovered,  or  they  may  be  looked  upon  simply  as  a 
reflection  of  the  moral  development  and  the  external  life 
of  the  particular  nations  which  are  governed  by 
them." 

The  second  of  these  views  represents  the  Positivist 
school.  Of  this  school  Professor  Oppenheim" 
says : — 

"  The  Positivists  are  the  antipodes  of  the  Naturalists. 
They  include  all  those  writers  who,  in  contradistinction 
to  Hobbes  and  Pufendorf,  not  only  defend  the  existence 
of  a  positive  law  of  nations  as  the  outcome  of  custom  or 
international  treaties,  but  consider  it  more  important 
than  the  Natural  Law  of  Nations,  the  very  existence  of 
which  some  of  the  Positivists  deny,  thus  going  beyond 
Zouche.  The  Positive  writers  had  not  much  influence 
in  the  seventeenth  century,  during  which  the  Naturalists 
and  the  Grotians  carried  the  day,  but  their  time  came  in 
the  eighteenth  century." 

It  is  not  too  much  to  say  that  the  modern  view  (dating, 

'   International  Law,  6th  Edition,  p.  i. 
-  International  Law,  191 2,  p.  90. 


1 6  INTERNATIONAL    LAW 

roughly,  from  the  middle  of  the  last  century)  is  now  pre- 
dominantly supreme,  and  that  the  basis  of  International 
Law  is  now  entirely  Positivist ;  it  rests  upon  fact 
and  practice,  and  no  longer  upon  speculation.  Thus 
Professor  Oppenheim'  says: — 

"  The  sources  of  International  Law  are  therefore  two- 
fold, namely  (i)  express  consent,  which  is  given  when 
States  conclude  a  treaty  stipulating  certain  rules  for 
the  future  international  conduct  of  the  parties ;  (2)  tacit 
consent,  which  is  given  through  States  having  adopted 
the  custom  of  submitting  to  certain  rules  of  International 
conduct.  Treaties  and  customs,  therefore,  are  exclu- 
sively the  sources'  of  the  Law  of  Nations." 

This  scrutiny  of  fundamentals  would  be  incomplete 
without  a  mention  of  the  distinction  to  be  drawn  between 
(a)  Universal  International  Law,  to  which  all  nations 
have  given  their  assent ;  (b)  General  International  Law, 
to  which  a  great  or  important  part  have  given  .'jcir 
assent;  (c)  Particular  International  Law,  which  is  bind- 
ing only  upon  that  small  group  of  States  who  have  given 
their  assent. 

Some  stress  has  been  laid  upon  the  distinction  be- 
tween the  Naturalist  and  the  Positivist  School  because 
much  of  what  seems  difficult  of  explanation  in  some  of 
the  eighteenth  century  judgments  becomes  intelligible 

'  International  Law,  Vol.  I,  p.  22  (1912). 

^  By  this  the  writer  doubtless  means  "formal"  sources,  v. 
Salmond's  Jurisprudence,  sub  loc.  "Sources  of  Law." 


GENERAL    NOTIONS  1 7 

if  we  understand  that  the  judges  of  those  days  had  in 
their  minds  something  very  different  from  what  we 
understand  by  International  Law,  and  proceeded  upon 
basic  principles  which  we,  of  to-day,  have  mainly  or 
entirely  rejected. 

Some  help  is  afforded  us  in  the  attempt  to  answer 
the  question,  In  what  relation  stands  International  Law 
to  the  Municipal  Law  of  England,  by  the  hterature  on 
the  subject.  But  those  jurists  who  have  given  any  atten- 
tion to  it  have  either  contented  themselves  with  general 
statements  without  a  more  minute  investigation,  or  have 
confined  themselves  to  one  branch,  such  as  the  relation 
between  Acts  of  Parliament  and  International  Law,  so 
exhaustively  treated  by  Professor  Holland  in  his 
"  Studies."'  In  order  to  answer  the  question  fully,  and, 
so  far  as  the  hesitating  tone  of  the  authorities  will  allow, 
finally  as  well,  it  is  necessary  to  combine  these  two 
methods.  Therefore  the  relation  must  be  considered  be- 
tween International  and  English  Municipal  Law  (i)  in 
respect  of  Acts  of  Parliament  and  Orders  in  Council ; 
(2)  in  respect  of  treaties ;  (3)  in  respect  of  the  Common 
Law. 

3.  At  this  point  it  may  be  well  to  clear  our  minds  for  the  international 
^  -^  ...  Law    a   Law 

enquiry  by  noting  the  elementary  proposition  (yet  one  between 

which  we  cannot  too  often  recall)  that  International  Law  states, 
is  a  law  made  between  and  binding  upon  States  as  per- 


Studies  in  International  Law,  p.  176. 


1 8  INTERNATIONAL    LAW 

sons  inier  se,  while  Municipal  Law  is  a  law  made  by 
States  for  those  persons  who  are  properly  liable  to  its 
commands  or  restrictions.  Sometimes  these  com- 
mands or  restrictions  relate  to  international  duties, 
and  this  forms  the  point  of  contact  between  the  two 
•  kinds  of  law.     This  distinction  is  clearly  brought  out 

by   Professor  Oppenheim  in  his  treatise.^      Speaking" 
of  the  neutral  duties  of  States,  he  says : — 

"  As  International  Law  is  a  law  between  States  only 
and  exclusively,  neutrality  is  an  attitude  of  impartiality 
on  the  part  of  States  and  not  on  the  part  of  individuals. 
Individuals  derive  neither  rights  nor  duties,  according 
to  International  Law,  from  the  neutrality  of  those  States 
whose  subjects  they  are.  Neutral  States  are,  indeed 
obliged  by  International  Law  to  prevent  their  subjects 
from  committing  certain  acts,  but  the  duty  of  these  sub- 
jects to  comply  with  such  injunctions  of  their  sovereign 
is  a  duty  imposed  upon  them  by  Municipal  and  not  by 
International  Law."  This  suggests  to  the  mind  such 
municipal  measures  as  the  Foreign  Enlistment  Act,  or 
the  Extradition  Acts,  and,  indeed,  all  that  group  of  legis- 
lation which  ensures  the  observance  of  duties  to  other 
States. 

Muttieipai  4.  Now,  SO  far  as  EnHand  efoes,  this  statement  is  in 

Law  the  ... 

means  of      the  main  true,  and  it  is  entirely  true  in  respect  of  Acts 

giiring  effect      ,  ^     ,.  ^  r      ,  •   ,  •       r         i  r 

to  raie>         or  r arliament,  many  oi  which  exist  tor  the  enforcement 

national        of  our  obligations  internationally  contracted.     At  this 
Law. 

'  2  International  Law,   1912,  p.  363. 


GENERAL    NOTIONS  IQ 

point  we  must  reserve  discussion  of  the  relation  between 
International  Law  and  the  Common  Law.  It  is  pointed 
out  elsewhere t  that  the  fact  that  the  law  of  England  is 
found  in  judicial  pronouncements  collectively  known  as 
the  Common  Law  (whose  origin  is  shrouded  in  obscu- 
rity), as  well  as  in  enacted  measures,  adds  greatly  to  the 
difficulty  of  arriving  at  a  clear  and  decisive  result.  But  if 
we  bear  in  mind  Professor  Oppenheim's  observation 
quoted  above,  and  then  apply  it  to  such  measures  as, 
e.g.,  the  Foreign  Enlistment  Act  we  find  that  we  get  a 
conception  of  such  portions  of  Municipal  Law  as  deal 
with  matters  of  international  concern  as  mere  machinery 
constituted  to  enforce  risfhts  and  duties.  This  view 
yiaturally  regards  Municipal  Law  as  in  the  subordinate 
position,  and  accessory  to  the  larger  purpose  of  inter- 
national obligation.  Stephen  views  the  matter  from  the 
converse  standpoint.  This  will  be  clear  from  the  follow- 
ing quotation' : — 

" .  .  .  It  is  often  said  that  by  International  Law  any 
nation  may  seize  and  condemn  as  prize  any  ship  with 
its  cargo  which  attempts  to  break  a  blockade,  .  .  .  but 
if  the  matter  is  carefully  considered  it  will,  I  think,  ap- 
pear that  the  law  enforced  is  not  a  law  common  to  all 
nations,  but  the  law  of  the  nation  which  seizes  the  ship. 
Each  nation  in  this  matter  legislates  concurrently  for 
all  mankind,  and  as  upon  the  whole  this  is  regarded  as 
convenient  for  all  mankind,  no  one  nation  objects.    The 

t  P-  75- 

'   History  of  Criminal  Law,  II,  p.  34. 


20  INTERNATIONAL    LAW 

law,  however,  is  not  a  law  made  by  all  nations,  but 
a  law  which  each  nation  makes  for  all  mankind  .... 
the  consent  of  nations  does  not  impose  this  lavj.  It  is 
merely  a  circumstance ^  zvhich  enables  it  to  be  imposed  by 
individual  nations,  and  it  is  not  even  an  absolutely  in- 
dispensable circumstance.'''^ 

The  material  words  are  placed  in  italics.  Stephen's 
view  amounts  to  this,  that  International  Law  is  merely  a 
condition  precedent  to  Municipal  Law,  a  circumstance 
that  makes  it  possible,  and  not  an  indispensable  circum- 
stance at  that.  The  real  effect  of  this,  if  pushed  to  its 
logical  conclusion,  is  to  deny  the  very  existence  of  Inter- 
national Law  as  a  body  of  rules  of  legally  or  even  quasi- 
legally  binding  force.  Instead  of  a  general  International 
Law,  which  requires  the  Municipal  Law  of  each  State 
to  come  up  to  its  standard  of  fitness,  we  find  a  portion 
of  the  Municipal  Law  of  each  State  dealing  with  matters 
of  international  concern,  roughly  in  harmony  with  the 
corresponding  portion  of  the  law  of  the  other  States,  by 
virtue  of  agreement  arrived  at  as  the  result  of  either  a 
treaty  or  a  course  of  practice. 

Westiake  5.  So  much  by  way  of  general  observation.  We  now 
and  others  (.Qj^g  |-q  examine  the  opinion  of  the  few  leading  jurists 
between  the  who  have  considered  the  question.  The  late  Dr.  West- 
two  kinds  lake,  in  an  article  published  in  the  "  Law  Quarterly 
"     **'  Review"  for  the  year  1906,  sums  up  his  position  thus' 

(P-  ^6) :- 

*  Law  Quarterly  Review,  1906,  Vol.  22. 


GENERAL    NOTIONS  2  I 

"  The  English  Courts  must  enforce  rights,  given  by 
International  Law  as  well  as  those  given  by  the  law  of 
the  land  in  its  narrower  sense,  so  far  as  they  fall  within 
their  jurisdiction  in  respect  of  parties  or  places,  subject 
to  the  rules  that  the  king  cannot  divest  or  modify  private 
rights  by  treaty  (with  the  possible  exception  of  treaties 
of  peace  or  treaties  equivalent  to  those  of  peace),  and 
that  the  Courts  cannot  question  acts  of  State  (or,  in  the 
present  state  of  the  authorities,  draw  consequences 
from  them  against  the  Crown). 

"  The  International  Law  meant  is  that  which  at  the 
time  exists  between  States  without  prejudice  to  the  right 
and  duty  of  the  Courts  to  assist  in  developing  its 
acknowledged  principles  in  the  same  manner  in  which 
they  assist  in  developing  the  principles  of  the  Common 
Law." 

This  article  will  be  more  fully  examined  in  another 
connexion.!  For  the  present  it  is  enough  to  say  that  the 
sentences  quoted  make  it  clear  that  the  writer  was  in- 
clined to  make  International  Law  directly  binding  on 
the  Courts,  and  to  attach  to  it  an  importance  which 
English  law  and  practice  is  hardly  inclined  to  accord  it, 
as  will  be  submitted  hereafter. 

Professor  J.  B.  Scott,  the  learned  American  jurist, 
writing  in  1907,  is  of  the  same  opinion' : — 

"  Laying  aside  theory  and  coming  to  the  realm  of 

t  P-  39- 

^  American  Journal  of  International  Law,  1907,  Part  2,  p.  852. 


22  INTERNATIONAL    LAW 

tangible  fact,  it  will  be  seen  that  Courts  of  Justice 
acknowledge  and  administer  International  Law  un- 
troubled by,  perhaps  unconscious  of,  the  doubts  and 
misgivings  of  Austin  and  the  analytical  school  of  juris- 
prudence. For  the  past  two  centuries  English  judges 
of  the  highest  repute  have  declared  from  the  bench  that 
International  Law  is  part  and  parcel  of  the  Municipal  or 
Common  Law  of  the  realm." 

This  proposition  will  be  examined  and  contested 
later. 

Professor  Oppenheim,  writing  in  19 12,  disagrees.  He 
says' : — 

"If  the  Law  of  Nations  and  Municipal  Law  differ  as 
demonstrated,  the  Law  of  Nations  can  neither  as  a  body 
nor  in  parts  be  -per  se  a  part  of  Municipal  Law,  Just  as 
Municipal  Law  lacks  the  power  of  altering  or  creating 
rules  of  International  Law,  so  the  latter  lacks  absolutely 
the  power  of  altering  or  creating  rules  of  Municipal 
Law." 

Mr.  Pitt  Cobbett's  view  is  as  follows' : — 

"  Notwithstanding  some  statements  to  that  effect 
made  by  the  text-writers,  and  some  dicta  to  be  found  in 
the  decisions,  it  can  scarcely  be  said  that  the  Law  of 
Nations  is  'adopted  in  its  full  extent  by  the  Common 
Law,'  or  that  it  is  '  deemed  to  be  part  of  the  law  of  the 
land.'" 


'  International  Law,  Vol.  I,  p.  26. 
'^  Cases,  Vol.  I,  p.  21  (1909). 


GENERAL    NOTIONS  23 

6.   Much  criticism  has  been  levelled  at  Austin's  con-  The 

tribution  to  legal  science.     But  English  lawyers  owe  J"'*'"'" 

y  16W  01  Lftw 

him  a  debt  of  gratitude.  He  reaHsed  with  startling  Acts  of 
clearness  the  scope  and  authority  of  an  Act  of  Parlia-  P"iiam«nt 
ment.  Before  his  time  its  force  had  been  limited  by 
such  reservations  as  its  conformity  with  the  Law  of 
Nature  or  Right  Reason.  He  cleared  the  ground  by 
propounding  a  definition  of  positive  law  which  has  put 
our  conception  on  a  new  and  permanent  basis.  It  is 
due  to  him  that  we  now  recognise  what  is  to-day  a 
truism,  but  was  far  from  that  when  he  wrote,  that  an 
Act  of  Parliament  cannot  be  illegal,  that  it  is  ex 
hypothesi  law,  and  that  all  that  a  Court  may  do  is  to 
administer  and  interpret  it  according  to  well-recognised 
and  scientific  canons  of  construction.  So  that  to  a 
modern  English  lawyer  trained  in  his  school  it  is  diffi- 
cult to  realise  that  there  was  a  time,  and  that  not  beyond 
the  memory  of  some  still  living,  possibly,  when  this  pro- 
position was  still  fighting  for  the  place  of  security  which 
it  now  certainly  holds. 

Before  we  pass  to  the  further  consideration  of  Acts*^*^®' 

of  Parliament,  it  will  be  as  well  to  note  some  of  the .  ^^  '*"* , 

in  partiCQiar 

Acts  of  international  importance  mentioned  in  Professor 
Holland's  Studies.'  He  divides  Acts  of  Parliament 
relating  to  international  matter  into  two  categories : — 

Acts  conferring  rights,  and 

Acts  providing  for  the  performance  of  duties. 


^  Studies  in  International  Law,  p.  176. 


24  INTERNATIONAL    LAW 

He  regards  the  Act  of  Parliament  as  something  final 
and  incapable  of  modification  by  reluctant  judges. 
"  Legislation  of  either  kind,"  he  says,  "  must  be  vigil- 
antly watched,  lest  it  lead  into  diplomatic  difficulties. 
Excess  in  assertion  of  right  and  defect  in  recognition 
of  duty  may  alike  prove  a  casus  belUr  By  this  he 
clearly  means  that  it  is  for  the  Courts  to  apply  an  Act, 
and  for  the  Government  to  deal  with  such  international 
difficulties,  if  any,  as  should  arise. 

(i)  The  Naturalisation  Act  of  1870  reaffirms  the 
Common  Law  doctrme  that  all  persons  born  within  the 
King's  dominions  are  British  subjects,  and  makes  pro- 
vision also  for  option  by  persons  who  have  a  double 
nationality. 

The  Territorial  Waters  Jurisdiction  Act  of  1878  con- 
ferred upon  the  Crown  the  right  denied  it  at  Common 
Law  by  the  Court  of  C.C.R.  of  exercising  jurisdic- 
tion through  the  Central  Criminal  Court  for  the  space  of 
one  marine  league  measured  from  low-water  mark. 

The  extra-territorial  and  consular  jurisdiction  exer- 
cised in  Turkey  and  in  certain  other  Eastern  States  is 
conferred  by  a  series  of  Acts  of  Parliament  merged  into 
the  consolidating  Foreign  Jurisdiction  Act  of  1890. 

(2)  The  outstanding  Act  in  this  category  is  the 
famous  7  Anne  c.  12  which  regulates  the  privileges  of 
diplomatic  envoys. 

The  provision  for  the  due  observance  by  this  country 
of  her  duties  as  a  neutral  is  made  by  the  great  Foreign 


GENERAL    NOTIONS  25 

Enlistment  Act  of  1870.  There  have  been  Acts  regu- 
lating international  duties  in  time  of  war  since  the 
clause  of  Magna  Carta,  which  provides  for  the  treatment 
of  alien  enemies  within  the  jurisdiction  at  the  outbreak 
of  war. 


CHAPTER  11. 


Holland  and 
Westlake 
on  the  Law 
of  Prize 
Courts. 


International    Law    in   Courts    of   Prize    and 

Admiralty. 

7.  Professor  Holland  lays  down  the  two  propositions 
that  International  Law  is  part  of  the  Common  Law  of 
the  realm,  and  also  that  if  this  be  admitted  and  it  is 
part  of  the  Common  Law,  it  will  be  overridden,  as  is 
any  other  portion  of  the  Common  Law,  by  an  Act  of 
Parliament.  "  The  contrary  view,"  he  says,  "  has  hardly 
found  expression  in  any  of  the  ordinary  Courts  of  Law 
or  Equity.  .  ." 

But  he  seems  to  place  Prize  Courts  in  a  separate  cate- 
gory, and  to  suggest,  and,  indeed,  to  assert,  that  a  Prize 
Court  is  not  bound  by  an  Act  of  Parliament  which  runs 
counter  to  International  Law  in  the  same  way  as  is  an 
ordinary  Court.  This  view  will  be  examined  in  the  light 
of  the  cases. 

The  late  Dr.  Westlake's  view  seems  scarcely  con- 
sistent.   He  says' : — 

"  Those  Courts  (i.e..  Courts  of  Prize)  sit  under 
national  authority,  and  must  obey  the  determinations  of 


^  22  Law  Quarterly  Review,  1906,  p.  24. 


COURTS    OF    PRIZE    AND    ADMIRALTY  2/ 

the  constitutional  national  authority.  .  .  Consequently 
for  the  purpose  of  enquiry  how  far  International  Law  is 
part  of  the  Law  of  England,  a  British  Prize  Court  stands 
on  the  same  footing  as  the  High  Court  of  the  judges  to 
whom  a  Petition  of  Right  is  referred,  and  that  Inter- 
national Law  is  its  law,  in  the  absence  of  express  inter- 
ference by  constitutional  authority,  is  an  elementary 
fact." 

8.   The  earhest  judicial  reference  to  the  question  is  The  "Maria." 
to  be  found  in  the  Maria^    The  facts  of  the  case  are*''®'* 
immaterial  for  the  purposes  of  understanding  the  judg- 
ment, and  need  not  be  stated  here.     Sir  William  Scott 
said  in  the  course  of  his  decision : — 

"  In  forming  that  judgment  I  trust  it  has  not  escaped 
my  recollection  for  one  moment  what  it  is  that  the  duty  of 
my  station  calls  for  from  me :  namely  to  consider  myself 
as  stationed  here,  not  to  deliver  occasional  and  shifting 
opinions  to  serve  present  purposes  of  particular  national 
interest,  but  to  administer  with  indifference  that  justice 
which  the  law  of  nations  holds  out  without  distinction  to 
independent  States,  some  happening  to  be  neutral  and 
some  to  be  belHgerent.  The  seat  of  judicial  authority 
is  indeed  locally  here,  in  the  belligerent  country,  accord- 
ing to  the  known  law  and  practice  of  nations ;  but  the 
law  itself  has  no  locality.  It  is  the  duty  of  the  person 
who  sits  here  to  determine  this  question  exactly  as  he 


1799,  I    Rob.  340. 


28  INTERNATIONAL   LAW 

would  determine  the  same  question  if  sitting  at  Stock- 
holm— to  assert  no  pretensions  on  the  part  of  Great 
Britain  which  he  would  not  allow  to  Sweden  under  the 
same  circumstances,  and  to  impose  no  duties  on  Sweden, 
as  a  neutral  country,  which  he  would  not  admit  to  belong 
to  Great  Britain  in  the  same  character.  If,  therefore, 
I  mistake  the  law  in  this  matter,  I  mistake  that  which  I 
consider,  and  think  I  mean  should  be  considered,  as  the 
universal  law  upon  the  question." 

The  first  observation  that  is  to  be  made  upon  this  ex- 
tract is  that,  while  it  is  a  valuable  indication  of  the  view 
Stowell  took  of  the  basis  and  scope  of  his  jurisdiction, 
yet  in  substance  it  really  amounts  to  little  more  than 
this— a  statement  that  all  nations  are  entitled  to 
"  equality  before  the  law,"  that  International  Law  is  not 
a  changing  and  capricious  set  of  rules  modified  and 
adapted  to  the  convenience  of  the  captor,  but  a  settled, 
uniform,  and  clearly  ascertainable  body  of  principles.  It 
is  also  to  be  noted  that  there  is  no  indication  at  any  point 
in  the  judgment  that  in  a  conflict  between  International 
Law  and  an  Act  of  Parliament  the  latter  would  receive 
secondary  attention.  It  is,  on  the  other  hand,  reason- 
ably clear  that  he  regarded  a  Prize  Court  jurisdiction  as 
something  quite  distinct  from  that  of  an  ordinary  Muni- 
cipal Court,  and  himself  as  administering  something 
which  was  not  English  Law,  but  a  kind  of  jus  gentium 
or  Common  Law  of  civilised  nations. 


IN    COURTS    OF    PRIZE    AND    ADMIRALTY  29 

9.  In  the  next  case  of   any    importance    the    same  The  "Wais- 
learned  judge  made  some  further  observations  on  the"*^*J*™ 

Ir3«CKQt|    1799 

same  point.  The  Walsingkain  Packed  was  a  case 
of  a  British  packet  retaken  from  the  enemy  in  which  a 
claim  was  given  for  the  cargo  as  the  property  of  British 
and  Portuguese  merchants,  and  resisted  on  the  part  of 
the  captors  on  the  ground  of  the  illegahty  of  such  a  trade 
under  13  and  14  Car.  II,  c.  11.  In  the  course  of  his 
judgment  he  said : — 

"...  This  Court  is  properly  and  directly  a  court  of 
the  law  of  nations,  and  I  am  not  aware  that  any  case  had 
occurred  before  the  present  war  in  which  the  Court  had 
acted  on  the  principle  on  which  it  certainly  did  act  in  the 
case  alluded  to.  I  mean  the  case  of  the  Eliza.  It  was 
the  case  of  a  ship  and  cargo,  in  which  the  claimant  being 
a  British  subject  appeared  to  have  been  engaged  in 
trafficking  with  that  cargo  in  direct  violation  of  British 
Acts  of  Parliament.  It  occurred  to  those  who  were  en- 
trusted with  the  concerns  of  the  captor  that  a  resistance 
to  such  a  claim  might  be  sustained  upon  a  ground  which 
had  not  been  occupied  in  any  other  case  that  had  oc- 
curred, viz.,  that  although  this  Court  is  properly  and 
directly  a  Court  of  the  law  of  nations  only,  and  not  in- 
tended to  carry  into  effect  the  Municipal  Law  of  this 
or  any  other  country ;  and  although  it  was  in  the  habit  of 
declining  to  take  notice  of  the  private  laws  of  other 
countries ;  yet  it  was  an  enquiry  worth  pursuing  whether 

'  1799.  2  Rob.  77. 


30  INTERNATIONAL    LAW 

a  British  Court  of  Admiralty,  sitting  here  armed 
with  its  power  from  this  country  and  carrying  all  its 
present  process  into  effect  by  authority  of  the  British 
Parliament,  was  not  so  far  a  British  Court  as  to  be  bound 
to  take  notice  of  British  Acts  of  Parliament,  and  the 
flagrant  breach  of  our  Municipal  Laws,  with  respect  to 
the  transaction  of  our  own  subjects  coming  incidentally 
before  it.  .  .  The  principle  was  affirmed  and  estab- 
lished that  a  British  Court  of  Admiralty  was  bound  to 
take  notice  of  the  violation  of  an  Act  of  Parliament  ap- 
pearing on  the  face  of  the  claim,  and  that  a  British 
claimant  could  not  entitle  himself  in  such  a  Court  to  a 
restitution  of  that  property  which  by  his  own  showing 
appeared  to  have  been  employed  in  an  illegal  trade." 

The  first  point  in  this  judgment  that  arrests  the  atten- 
tion is  that  the  learned  judge  seems  to  have  invested 
International  Law^  with  such  a  sanctity  that  he  actually 
needs  to  convince  himself  with  an  elaborate  process  of 
reasoning  and  by  reference  to  a  previous  decision  that 
a  British  subject  cannot  come  into  a  British  Court  of 
Admiralty  in  order  to  sustain  a  claim  that  rests  upon  a 
breach  of  British  laws.  This  case  may  be  said  to  mark 
the  climax  of  the  tendency  to  exalt  International  at  the 
expense  of  Municipal  Law.  Further,  it  would  seem 
that  the  observations  made  by  the  learned  judge  in  the 
earher  part  of  his  judgment  are  with  difficulty  to  be  re- 
conciled with  those  which  he  makes  at  a  later  stage.  He 
remarks  that  the  Prize  Court  is  concerned  merely  with 
the  law  of  nations,  and  has  no  concern  with  the  Muni- 


IN    COURTS    OF    PRIZE    AND    ADMIRALTY  3 1 

cipal  Law  of  any  particular  State.  Later  on  he  seems 
to  base  his  judgment  on  the  consideration  that  the  Court 
is  a  "  British  Court  of  Admiralty,  sitting  here,  armed 
with  its  power  from  this  country,  and  carrying  out  all  its 
process  with  the  authority  of  the  British  Parliament." 
It  is  no  long  distance  from  such  a  strong  statement  as 
this  to  the  bold  admission  that  the  Prize  Court,  like  any 
other  of  the  King's  Courts,  administers  the  law  of  the 
land. 

10.  The  Recover  f  was  the  case  of  an  American  The 
vessel  with  a  cargo  of  cotton,  taken  in  at  Bombay,  from  "  Recovery ," 
where  she  had  proceeded  to  Salem  in  America,  whence 
she  sailed  again,  without  unloading,  for  Rotterdam,  on 
which  vovage  she  was  seized.  She  was  brought  in  for 
trial  on  the  ground  of  her  violation  of  the  Navigation 
Laws.  In  the  course  of  his  judgment  Lord  Stowell 
said : — 

" .  .  .  I  am  now  sitting  in  a  Court  of  Prize,  and  the 
prayer  that  is  addressed  to  the  Court  is  that  it  would 
inflict  the  penalties  of  the  Revenue  Court  on  a  foreign 
ship  and  cargo  that  is  brought  before  it  on  a  seizure  of 
war.  .  .  Bui  there  is  no  instance  in  which  the  same 
principle  has  been  applied  to  foreigners.  In  some 
cases  where  it  has  been  pressed  in  argument  the  Court 
has  invariably  resisted  the  application ;  and  there  are 
many  reasons  which  would  make  me  very  unwilling  to 
take  on  mvself  the  extension  of  the  principle,  without 

'   1807,  6  Rob.  341. 


32  INTERNATIONAL    LAW 

having  it  imposed  upon  me  by  the  authority  of  the 
Superior  Court.  ...  It  is  asked,  if  you  apply  such  a 
principle  to  the  claim  of  British  subjects,  why  not  also 
to  those  of  other  nations?  Some  distinctions  are 
obvious.  In  the  first  place,  it  is  to  be  recollected  that 
this  is  a  Court  of  the  Law  of  Nations,  though  sitting 
here  under  the  authority  of  the  King  of  Great  Britain. 
It  belongs  to  other  nations  as  well  as  to  our  own ;  and 
what  foreigners  have  a  right  to  demand  from  it  is  the 
administration  of  the  law  of  nations  simply  and  ex- 
clusively from  our  own  municipal  jurisprudence,  to 
which  it  is  well  known  they  have  at  all  times  expressed 
no  inconsiderable  repugnance." 

The  learned  judge  therefore  refused  to  enforce  the 
Acts. 
Observations      11.   Sir  R.  Phillimore'  quotes  a  passage    from    the 
of  Sir  J.        L'fg  Qf  sij.  J    Mackintosh  containing  some  sentences 
1807.  *"  °^  '  of   a    judgment  of    his   when    sitting  as   Recorder  of 
Bombay  under  a  Commission  of  Prize  (about   1807). 
The  Recorder  stated  it  to  be  the  "  duty  of  the  judge  to 
disregard  the  'instructions'  supposing  them  to  be  illegal, 
and  to  consult  only  that  universal    law    to    which    all 
civilised  Princes  and  States  acknowledge  themselves 
to  be  subject.  ...     In  the  case  of  such  illegal  instruc- 
tions   he    was    convinced    that    English     Courts    of 
Admiralty  would  as  much  assert  their  independence  of 
arbitrary   mandates   as    English    Courts    of    Common 
aw. 
'  3  Phill.  s.  436. 


IN    COURTS    OF    PRIZE    AND    ADMIRALTY 

12.  The  judgment  of  Lord  Stowell  (then  Sir  W.  The  "Fox," 
Scott)  in  the  important  case  of  the  Fox  and  Others  i^ii. 
contains  some  mteresting  observations.  This  was  the 
case  of  an  American  vessel  taken  and  seized  on  a  vovaoe 
from  Boston  to  Cherbourg.  It  was  contended  by  the 
captors  that  the  ship  being  destined  to  a  French  port 
was  Hable  to  confiscation  under  the  Order  in  Council 
of  26th  April,  1809. 

■•  In  the  course  of  the  discussion,"  said  the  learned 
judge,  "  a  question  has  been  started :  What  would  be 
the  duty  of  the  Court  under  Orders  in  Council  that  were 
repugnant  to  the  law  of  nations  ?  It  has  been  contended 
on  one  side  that  the  Court  would  at  all  events  be  bound 
to  enforce  the  Order  in  Council ;  on  the  other,  that  the 
Court  would  be  bound  to  apply  the  rule  of  the  law  of 
nations  adapted  to  the  particular  case,  in  disregard  of 
the  Orders  in  Council.  I  have  not  observed,  however, 
that  these  Orders  in  Council,  in  their  retaliatory  char- 
acter, have  been  described  in  the  argument  as  repugnant 
to  the  law  of  nations,  however  liable  to  be  so  described 
if  merely  original  and  abstract.  And  therefore  it  is 
rather  to  correct  possible  misapprehension  than  from  the 
sense  of  any  obligation  that  the  present  discussion  im- 
poses upon  me  that  I  observe  that  this  Court  is  bound 
to  administer  the  Law  of  Nations  to  the  subjects  of 
ether  countries  in  the  different  relations  in  which  they 
may  be  placed  towards  their  country  and  its  govern- 

'    181 1,  Edw.  Adm.  Reports,  312. 

D 


34  INTERNATIONAL    LAW 

ment.  This  is  what  other  countries  have  a  right  to 
demand  for  their  subjects  and  to  complain  if  they  receive 
it  not.  This  is  its  unwritten  law  evidenced  in  the  course 
of  its  decisions,  and  collected  from  the  common  usage  of 
civilised  States.  At  the  same  time,  it  is  strictly  true 
that  by  the  constitution  of  this  country  the  King  in 
Council  possesses  legislative  rights  over  this  Court,  and 
has  power  to  issue  orders  and  instructions  which  it  is 
bound  to  obey  and  enforce;  and  these  constitute  the 
written  law  of  this  Court.  These  two  propositions,  that 
the  Court  is  bound  to  administer  the  Law  of  Nations 
and  that  it  is  bound  to  enforce  the  King's  Orders  in 
Council,  are  not  at  all  inconsistent  with  each  other, 
because  these  orders  and  mstructions  are  presumed  to 
conform  themselves,  under  the  given  circumstances,  to 
the  principles  of  its  unwritten  law.  They  are  either 
directory  applications  of  these  principles  to  the  cases 
indicated  in  them  ....  or  they  are  positive 
regulations,  consistent  with  these  principles,  applying 
to  matters  which  require  more  exact  and  definite 
rules  than  those  general  principles  are  capable 
of   furnishing." 

The  learned  judge  then  proceeded  to  draw  an  analogy 
between  Orders  in  Council  and  the  unwritten  rules  of 
International  Law  on  the  one  hand,  and  Acts  of  Parlia- 
ment and  the  Common  Law  on  the  other.  He  declined 
to  enter  into  any  speculation  as  to  the  duty  of  the 
Court  in  the  case  of  a  conflict  between  an  Act  of  the 
Legislature  and  the  "  approved  principles  of  reason  and 


IN    COURTS    OF    PRIZE    AND    ADMIRALTY  35 

justice"  of  which  the  Common  Law  consists,  on  the 
ground  that  the  Court  cannot  "without  extreme  in- 
decency" presume  that  any  such  conflict  could 
arise. 

This  is  a  very  instructive  judgment.  It  is  clear  that 
the  learned  judge  found  himself  in  a  difficulty.  He  was 
on  the  one  hand  forced  to  admit  the  elementary  proposi- 
tion of  Enghsh  Law  that  the  King  in  Council  has  power 
to  issue  all  orders  for  the  conduct,  etc.,  in  time  of  war, 
of  his  armed  forces,  both  military  and  naval,  and  that 
such  orders  are  of  binding  effect  on  a  Court  of  Prize. 
But  he  was  forced  by  his  previous  decisions  and  his 
whole  conception  of  the  basis  and  function  of  a  Prize 
Court  to  uphold  the  equally  binding  force  of  Inter- 
national Law.  He  was  therefore  driven  to  reconcile  the 
two  in  the  possible  case  of  a  conflict  between  them.  In 
the  case  before  us  he  was  able  to  do  so  by  holding  that 
the  Order  in  Council  was  retahatory,  and  therefore  in 
conformity  with  International  Law.  But  he  went 
further,  and  decHned  to  make  an  allowance  for  such  a 
conflict  in  general  by  erecting  the  violent  presumption 
that  the  two  must  always  be  in  harmony.  Thus  b\'  a 
pure  legal  fiction  he  was  able  to  maintain  his  difficult 
position.  The  allusion  he  makes  to  Acts  of  Parliament 
in  conflict  with  the  Common  Law  is  suggestive.  It  is 
submitted  that  the  learned  judge  took  the  view  of  Acts 
of  the  Legislature  which  was  prevalent  in  his  day  and 
applied  the  same  to  the  procedure  of  a  Prize  Court. 
His  view,  shortly  put,  then,  amounts  to  this— that  a 


36  INTERNATIONAL    LAW 

Common  Law  judge  sitting  in  a  Court  of  Common  Law 
will  strain  every  nerve  to  avoid  the  admission  of  a  con- 
flict between  an  Act  of  Parliament  and  the  "  rules  of 
right  reason"  contained  in  the  Common  Law,  but  in  an 
extreme  case  might  be  at  liberty  to  follow  the  Common 
Law  in  preference  to  the  Act ;  and  that  similarly  a  Prize 
Court  judge  will  strain  every  nerve  to  avoid  the  admis- 
sion of  a  conflict  between  an  Act  of  Parliament  or  an 
Order  in  Council  and  the  unwritten  rules  of  Interna- 
tional Law,  but  in  an  extreme  case  would  be  prepared 
to  follow  the  rules  of  International  Law,  as  indeed 
Stowell  in  fact  did  in  the  case  of  the  Recovery  quoted 
above. 

The  "Giro-        13.  The  case  of  the    Girolamo"    is    even  stronger. 
lamo,"  1884.   jj^  ^^^  ^^gg  l-j^g  Court  of  Admiralty  was  sitting  in  its 

"instance"  jurisdiction  and  not  as  a  Court  of   Prize. 

Yet  Sir  John  Nicholl  makes  the  following  observations 

in  his  judgment : — 

"...  This  defence  is  set  up  by  a  foreign  owner  on 
behalf  of  a  foreign  ship  in  a  Court  governed  by  the 
principles  of  International  Law,  and  a  question  arises 
whether  a  foreigner  can,  in  a  suit  in  this  Court,  set  up 
as  defence  a  municipal  law  made  to  regulate  municipal 
courts  only,  and  contrary  to  those  general  rules  of  law 
which  prevail  amongst  commercial  nations.  .  .  ." 


'   1834,  3  Hagg.  Adm.  169. 


IN    COURTS    OF    PRIZE    AND    ADMIRALTY  2)7 

14.   In  the  case  of  Cope  v.  Doherty"^  the  material  Cope  y. 
point  was  whether  the  Merchant  Shipping  Act  of  1854  °gg®''*^' 
extended  to  foreigners  and  to  foreign  vessels  on  the  high 
seas.     Page-Wood,  V.-C,  remarked  in  the  course  of  his 
judgment : — 

"...  The  question  arises  whether  the  legislature  of 
this  country  has  a  right  to  restrict  the  privileges  which 
foreign  owners  would  enjoy  under  the  general  law  of 
nations  and  say,  whenever  you  are  run  down  by  a 
British  ship  on  the  high  seas,  if  you  seek  your  remedy 
under  the  general  law  of  nations  which  would  entitle 
you  to  full  damages  in  respect  of  all  the  injury  you  have 
sustained,  you  are  to  be  tied  down  by  the  Municipal 
Law  of  this  country.'  ...  It  would  be  to  impute  to  the 
legislature  of  this  country  an  attempt  to  legislate  for 
foreigners  by  taking  away  those  rights  and  privileges 
which  they  enjoy  by  the  general  law.'' 

The  presumption  was,  he  held,  against  any  such 
attempt. 

15.   The    Annapolis'    turned    on    the    same    point.  The  "imiA- 
Dr.  Lushington  said:—  poiis."  I86I. 

"...  The  Parliament  of  Great  Britain,  it  is  true,  has 
not  according  to  the  principles  of  public  law  an}- 
authority  to  legislate  for  foreign  vessels  on  the  high 
seas,  or  for  foreigners  out  of  the  limits  of  the  British 
jurisdiction,  though  if  Parliament  thought  fit  to  do  so 


*  Cope  V.  Doherty,  '858,  4  K.  &  |. 
-    f86i,  30  L.  J.  P.  &'  M.  201. 


38  INTERNATIONAL    LAW 

this  Court,  in  its  instance  jurisdiction  at  least,  would  be 
bound  to  obey.  The  presumption  is  strong  against 
Parliament  by  legislation  contravening  International 
Law.  In  cases  admitting  of  possible  doubt  the  pre- 
sumption would  be  that  Parliament  intended  to  legislate 
without  violating  any  rule  of  International  Law,  and  the 
construction  would  be  accordingly." 

Sir  R.  16.   Even  Sir  Robert  Phillimore,^  writing  as  recently 

Phillimore.  ^3  j-jjg  'seventies,  emphatically  adopts  the  non-municipal 
view  of  Prize  Law.  "  It  is  clear,"  he  says,  "  that  it  has 
never  been  the  doctrine  of  the  British  Prize  Courts  that 
because  they  sit  under  the  authority  of  the  Crown  the 
Crown  has  authority  to  prescribe  to  them  rules  which 
violate  International  Law.  ...  If  Lord  Stowell  had 
not  considered  the  Orders  in  Council  to  be  consistent 
with  International  Law  and  nevertheless  had  executed 
them  he  would  have  incurred  the  same  guilt  and  de- 
served the  same  reprehension  as  the  judge  of  a  Muni- 
cipal Court  who  executed  by  his  sentence  an  edict  of 
the  legislature  which  plainly  violated  the  law  written 
by  the  Creator  upon  the  conscience  of  His  Creature." 

With  the  greatest  deference  to  the  eminent  writer  of 
the  above  it  yet  must  be  said  that  the  value  of  the  whole 
passage  is  severely  discounted  by  the  presence  of  the 
last  sentence.  Such  a  view  would  find  little  support,  it 
is  submitted,  at  the  present  day. 

^  3  Phill.  436. 


IN    COURTS    OF    PRIZE    AND    ADMIRALTY  39 

17.  Before  we  pass  from  the  treatment  of  Acts  ofwestiake. 
Parliament  and  Orders  in  Council  in  Prize  Courts  it  will 
be  well  to  examine  the  views  of  two  leading  jurists  of 
our  day.  The  late  Professor  Westlake  has  something 
to  say  on  the  subject  in  his  article  on  International  Law 
in  relation  to  English  Municipal  Law.'  He  seems  to 
incline  to  an  opinion  intermediate  between  that  of 
Stowell  and  Phillimore  and  that  which  regards  Prize 
Law  as  wholly  municipal.  While  he  admits  that  a 
British  Prize  Court  sits  "  under  national  authority  and 
must  obey  the  determinations  of  the  constitutional 
national  authority,"  and  that  Lord  Stowell  could  not 
properly  have  looked  behind  the  Orders  in  Council,  yet 
he  holds  that  in  the  absence  of  interference  by  the  con- 
stitutional authority  the  Law  of  the  Court  is  Interna- 
tional Law,  and  that  it  is  the  function  of  the  judges  of 
Prize  Courts  to  develop  and  expound  the  principles  of 
this  law  as  they  would  those  of  the  Common  Law.  It 
mav  be  inferred  from  this  that  the  interference  by  the 
constitutional  authority  is  an  interference  by  Act  of 
Parliament  or  by  Order  in  Council ;  and  that  in  the 
absence  of  these  the  Court  does  not  follow  its  previous 
decisions  (if  it  follows  them  at  all)  qua  propositions  of 
English  Law  declared  and  expounded  by  the  judges, 
but  qua  propositions  of  International  Law  embodied  in 
these  decisions. 

This  view  then  agrees  with  the  principles  laid  down 

'  22  L.Q.R.,  p.  14. 


Professor 
Oppenheim. 


4^  INTERNATIONAL    LAW 

by  Lord  Stowell  in  that  it  makes  the  "  unwritten  rules" 
of  International  Law  the  law  of  the  Prize  Court,  leaving 
those  rules  to  be  expounded  by  the  judges,  while  it  falls 
short  of  Stowell  in  the  important  particular  that  accord- 
ing to  it  an  Act  of  Parliament  or  an  Order  in  Council 
concludes  absolutely  the  mind  of  the  Court. 

18.  A  far  clearer  and  more  satisfying  view  is  given 
by  Professor  Oppenheim.'    "  Although  belligerents,"  he 
savs,  "have  under  certain  circumstances  according  to 
International  Law  the  right  to  capture  neutral  vessels, 
and  although  they  have  the  duty  to  bring  these  vessels 
for  trial  before  a  Prize  Court,  such  trials  are  in  no  way 
an  international  matter.     Just  as  Prize  Courts — apart 
from  the  proposed  International  Prize  Court — are  muni- 
cipal institutions,  so  trials  of  captured  neutral  vessels 
by  these  Prize  Courts  are  municipal  matters.       The 
neutral  home  States  of  the  vessels  are  not  represented, 
and  directly,  at  any  rate,  not  concerned  in  the  trial.    Nor 
is,  as  is  commonly  maintained,  the  law  administered  by 
Prize  Courts  International  Law.     These  Courts  apply 
the  law  of  their  country.     The  best  proof  of  this  is  the 
fact  that  the  practice  of  the  Prize  Courts  of  the  several 
countries  has  hitherto  differed  on  many  points.     Thus, 
for  instance,  the  question  what  is  and  what  is  not  con- 
traband, and,  further,  the  question   when  an  attempt  to 
break  blockade  begins  and  when  it  ends,  have  hitherto 


2  Oppenheim,  p.  553  (1912). 


IN    COURTS    OF    PRIZE    AND    ADMIRALTY  4 1 

been  differently  answered  by  the  practice  of  different 
States." 

The  writer  very  properly  points  out  that  practice  has 
been  widely  divergent  in  some  branches  of  Prize  Law, 
more    especially   in    the    matters    of    contraband    and 
blockade.     Now,  even  if  we  applied  the  modern  test  of 
International   Law — namely,  uniformity  of  practice — it 
should  be  noted,  firstly,  there  was  at  the  time  the  judg- 
ments of  Stowell  were  delivered  no  such  uniformity, 
nor  anything  in  the   smallest  degree  approaching  it ; 
and,  in  the  second  place,  International  Law  did  not  at 
that  period  in  the  main  rest  upon  the  basis  of  practice, 
but  largely  upon  the  a  priori  speculation  of  writers.    We 
are  therefore  driven  to  say  that,  although  the  decisions 
and  practice  of  the  Prize  Courts  of  one  State  differed, 
even  widely,  from  those  of  another,  yet  those  Courts 
were  administering  not  each  the  law  of  its  own  country, 
but  its  own  view  and  interpretation  of  the  general  Law 
of  Nations.     When  put  thus  the  question  seems  to  be 
little  more  than  academic.     Between  the  statement  that 
the  Prize  Court  of  each  nation  administers  its  own  law 
and  the  statement  that  it  administers  its  own  view  of 
International  Law,  the  dividing  line  seems  to  be  slender 
indeed ;  and  at  that  we  must  leave  it. 

18a.  Lastly,  the  article  on  Prize  Law  (to  which  Lord 
Mersey  is  one  of  the  contributors)  in  the  Laws  of 
England  contains  the  following  observation'  to  the  same 
effect : — 

*  23  Hal.   Laws  of  England,  285  n.    (6). 


42  INTERNATIONAL    LAW 

"  It  was  asserted  by  Lord  Stowell  that  the  Prize  Court 
was  an  international  court  which  administered  the  law 
of  nations  .  .  .  but  this  view  is  now  rightly  regarded 
as  questionable." 

The  "Chile,"      |9,  Xhe  most  recent  cases,  however,  decided  in  the 

1914. 

Prize  Court,  with  Sir  S.  Evans  as  judge,  give  a  rather 
wider  scope  to  International  Law,  and  declare  in  terms 
that  it  is  the  proper  law  of  such  a  Court.  Thus,  in  the 
case  of  the  Chile,'  the  binding  effect  of  the  Sixth 
Hague  Convention  was  under  discussion.  The 
"  Chile,"  a  German  ship,  entered  the  port  of  Cardiff 
on  August  4th,  19 14,  before  the  outbreak  of  war.  On 
the  following  day  she  was  seized  by  the  Customs  officers. 
An  Order  in  Council  provided  that  German  ships  in 
British  ports  at  the  outbreak  of  war  should  be  allowed 
till  August  14th  in  which  to  depart,  provided  that 
reciprocal  treatment  was  accorded.  The  British  Govern- 
ment received  no  assurance  of  such  reciprocity. 

Sir  S.  Evans,  P.,  said  there  were  two  matters  he 
might  have  to  consider:  Whether  he  was  bound  by 
the  terms  of  the  Hague  Convention  referred  to,  and,  if 
so,  what  was  the  meaning  of  Art.  II. 

The  Attorney-General  submitted  that  his  Lordship 
was  bound  by  the  Convention,  which  was  an  interna- 
tional contract.       It  stood  in  the  same  position  as  the 

'  T.L.R.,  Oct.  23rd,  1914. 


IN    COURTS    OF    PRIZE    AND    ADMIRALTY  43 

Declaration  of  Paris,  which,   he    submitted,    must    be 
treated  as  modifying  the  Common  Law.t 

20.   In  the    Marie    Glaeser'  the   learned    Presidential'®""*"® 

Glaeaer," 

considered  in  an  obiter  dictum  the  effect  of  the  Declara- 1914. 
tion  of  Paris.    After  tracing  the  manner  in  which  it  had 
been  acted  upon  by  different  States,  he  said : — 

"  This  Court  accordingly  ought  to  and  will  regard  the 
Declaration  of  Paris  not  only  in  the  light  of  rules  bindmg 
in  the  conduct  of  war,  but  as  a  recognised  and  acknow- 
ledged part  of  the  law  of  nations,  which  alone  is  the 
law  this  Court  has  to  administer.  But  how  can  it  be 
used  or  apphed  so  as  to  support  the  claimant's  case? 
This  Court  can  only  enunciate  what  it  conceives  to  be 
the  law  of  nations.  If  any  matter  of  International  Law 
in  controversy  between  nations  requires  to  be  settled 
by  international  convention  this  Court  cannot  ante- 
cedently declare  the  controverted  doctrine  to  be  a  part 
of  International  Law." 

The  learned  President  then  went  on  to  consider  a 
series  of  judgments  on  the  point  under  consideration  in 
the  Prize  Courts  of  America,  France,  Japan,  and 
Russia,  presumably  as  evidence  of  the  state  of  Inter- 
national Law. 

t  In  effect,  the  President  decreed  the  detention  of  the  vessel, 
though  he  said  :  "I  propose  to-day  in  this  case  to  make  an 
order  which  will  not  finally  determine  the  rights  of  the  Crown 
under  Articles  I  and  II  of  the  Hague  Convention.  .  .  .  The 
Crown  is  entitled  to  ask  for  less  than  the  law  could  give." 

^  T.L.R.,  Oct.  23rd,  1914. 


44  INTERNATIONAL    LAW 

The^Beriin,"      21.   In  the  case  of  the  Berlin^  the  question  at  issue 
was  the  exemption  from  capture  of  fishing-boats. 

The  President  quoted  at  length  from  the  judgment 
of  the  Supreme  Court  of  the  United  States  in  the 
Paquete  Habana  and  the  Lola^'  from  Japanese 
Prize  Court  decisions  and  instructions  to  naval  officers. 
He  then  contmued : — "  In  this  country  I  do  not  think 
any  decided  and  reported  cases  have  treated  the  im- 
munity of  such  vesesls  as  a  part  or  rule  of  the  law  of 
nations  (see  the  Young  Jacob  and  /oanna,  i  Rob.  20, 
and  the  Liesbet  van  den  Toll,  5  Rob.  283).  But 
after  the  lapse  of  a  century  I  am  of  opinion  that  it  has 
become  a  sufficiently  settled  doctrine  and  practice  of 
the  law  of  nations  that  fishing-vessels  plying  their  in- 
dustry near  or  about  the  coast  (not  necessarily  in  terri- 
torial waters)  in  and  by  which  the  hardy  people  who 
man  them  gain  their  livelihood  are  not  properly  the 
subjects  of  capture  in  war  so  long  as  they  confine  them- 
selves to  the  peaceful  work  which  the  industry  properly 
involves." 

He  decreed  the  condemnation  of  the  "  Berlin,"  how- 
ever, on  the  ground  that  her  size^  etc.,  removed  her  from 
the  exemption. 

The»Mowe,"      22.  The   Mowe    raised   the   question    of    the    right 

""•  of  an  alien  enemy  to  be  heard  in  the  Prize  Court,  relying 

upon  the  Sixth  Hague  Convention,  which  gives  exemp- 

'  T.L.R.,  Nov.  13,  1914. 
-  175  U.S.  677. 
T.L.R.,  Nov  20th,   1914. 


.1 


IN    COURTS    OF    PRIZE    AND    ADMIRALTY  45 

tion  from  condemnation  to  vessels  found  within  port  at 
the  outbreak  of  war.  The  President,  in  dehvering 
judgment,  made  the  following  observations  :— 

"  I  will  now  consider  whether  the  owners  of  an  enemy 
vessel  have  a  right,  or  should  be  given  the  right,  to 
appear  to  put  forward  a  claim  under  the  Conventions, 
assuming,  as  was  done  during  the  argument,  that  they 
are  operative.  Dealing  with  the  Hague  Convention 
as  a  whole,  the  Court  is  faced  with  the  problem  of  decid- 
ing whether  a  uniform  rule  as  to  the  right  of  an  enemy 
owner  to  appear  ought  to  prevail  in  all  cases  of  claimants 
who  mav  be  entiUed  to  protection  or  relief,  whether 
partial  or  otherwise.  Mr.  Holland  argued  that  this  is  a 
matter  not  of  International  Law,  but  of  the  practice  of 
this  Court.  That  view^  is  correct.  I  think  that  this 
Court  has  the  inherent  power  of  regulating  and  prescrib- 
ing its  own  practice,  unless  fettered  by  enactment.  Lord 
Stowell  from  time  to  time  made  rules  of  practice,  and 
his  power  to  do  so  was  not  questioned.  Moreover,  by 
Order  XLV  of  the  Prize  Court  Rules,  1914,  it  is  laid 
down  that  in  all  cases  not  provided  for  by  these  rules 
the  practice  of  the  late  High  Court  of  Admiralty  of 
England  in  prize  proceedings  should  be  followed  or 
such  other  practice  as  the  President  may  direct." 

23.   Sir  Samuel  Evans  has  already  indicated  that,  had  ^°ft'{^°°d°' 
they  been  ratified  by  all  the  belligerents  (failing  which  ^^^^^^^ 
they  are  not  binding),  he  would  have  treated  the  Sixth  f„°p'Jf^g*®°' 
and  Eleventh  Hague  Conventions  as  part  of  the  law  of  Coart. 


46  INTERNATIONAL    LAW 

the  Court.  He  has,  in  fact,  acted  on  the  Sixth,  on  the 
ground  that,  though  in  strictness  not  binding,  yet  it  is 
competent  to  the  Crown  to  ask  for  less  than  that  to  which 
it  is  entitled ;  on  the  Eleventh,  on  the  ground  that  the 
immunity  from  capture  of  small  fishing  vessels  has  be- 
come part  of  the  customary  law  of  nations. 

Orders  in  24.  A  more  difficult  question  is  presented  by  the 

Couneii  mode  of  resolving  a  conflict  between  an  Order  in  Coun- 
Declaration  ^^^  ^^^  International  Law.  Lord  Stowell  in  the  Fox 
of  London,  acted  Upon  the  strong  presumption  that  such  a  conflict 
was  impossible.  It  has  been  argued  above'  that  if  the 
conflict  were  so  glaring  and  unmistakable  as  to  be 
beyond  any  such  fictitious  reconciliation,  then  Interna- 
tional Law  would  prevail  in  the  last  resort.  For  example, 
the  Declaration  of  London  has  not  been  ratified,  though 
an  Order  in  Council  has  adopted  most  of  its  provisions, 
together  with  the  Report  of  the  Drafting  Committee, 
as  rules  of  Prize  Law  to  be  applied  in  the  Court.  Any 
Order  in  Council  modifying  or  limiting  its  provisions 
stands  on  the  same  footing  as  any  other  instruction  from 
the  Crown  to  the  Prize  Court  laying  down  regulations 
for  the  capture,  etc.,  of  vessels,  and  will  be  construed 
subject  to  the  strong  presumption  that  they  are  not  in- 
consistent with  International  Law.  Should  such  incon- 
sistency be  irremediably  pronounced,  then  International 
Law  will  prevail. 

'  See  p.  35. 


IN    COURTS    OF    PRIZE    AND    ADMIRALTY  47 

It  must  always  be  remembered  that  Orders  in  Coun- 
cil, however  otherwise  inconsistent  with  International 
Law,  are  binding  on  a  Prize  Court  if  retaliatory  (cf.  the 
Fox). 


25.  The  conclusions  stated  above  may  be  reached  by  Erskine  on 

Orders  ii 
Council. 


another  road.     It  was  contended  by  Lord  Erskine  in 


the  House  of  Lords,'  in  a  debate  on  the  same  series  of 
Orders  in  Council  as  was  discussed  in  the  Fox,  that 
by  the  Common  Law  of  England  the  law  to  be  ad- 
ministered in  a  Prize  Court  is  the  law  of  nations. 
Therefore  an  Order  in  Council  cannot  in  the  event  of 
a  conflict  be  preferred  to  International  Law,  which  is 
the  ordinary  law  of  a  Court  of  Prize.  If  viewed  from 
this  angle  the  question  really  resolves  itself  into  this: 
whether  there  is  a  power  inherent  in  the  prerogative  to 
legislate  for  a  Prize  Court,  such  legislation  supplanting 
so  much  of  the  unenacted  law  of  the  Court  as  is  incon- 
sistent with  it  in  the  same  and  as  ample  a  manner  as  an 
Act  of  Parliament  supplants  Common  Law.  The 
answer  would  seem  to  be  in  the  negative. 

Finally,  it  should  be  noted  that,  in  spite  of  certain 
dicta  to  the  contrary,  an  Act  of  Parliament,  even  though 
in  conflict  with  International  Law,  would  to-day  be 
regarded  as  binding  upon  the  Court  of  Admiralty  in  its 
Prize,  and  a  fortiori  in  its  Instance,  jurisdiction. 

'  Cobbett's  Pari.  Debates,  Vol  X,  p.  929. 


CHAPTER  III. 

International  Law  and  Acts  of  Parliament  in 
Ordinary  Courts. 

ingio-  26.  There  is  little  difficulty  in  determining  the  posi- 

Amencan        .^^  ^^  ^^^^  ^^  Parliament  in  the  ordinary  Courts  of  the 

Telegraph  -^ 

Case,  1877.     land  if  and  when  they  are  in  conflict  with  International 

Law. 

The  case  of  the  Direct  United  States  Cable  Com- 
pany V.  Anglo-American  Telegraph  Company^  is 
instructive.  The  appellants  appealed  to  the  Judicial 
Committee  of  the  Privy  Council  against  an  injunction 
granted  by  the  Supreme  Court  of  Newfoundland  re- 
straining them  from  infringing  certain  rights  conferred 
upon  the  respondents  by  the  Act  17  Vic,  c.  2.  The 
appellants  had  laid  a  telegraph  cable  to  a  buoy  more 
than  thirty  miles  within  Conception  Bay,  which  hes  on 
the  east  of  Newfoundland  between  two  promontories 
distant  rather  more  than  twenty  miles,  the  average  width 
of  the  bay  being  fifteen  miles,  the  distance  of  the  head 
of  the  bay  from  the  two  promontories  being  respectively 
forty  and  fifty  miles.     The  judgment  of  the  Board  was 


1877,  2  A.C.  394. 


INTERNATIONAL    LAW    AND    ACTS    OF    PARLIAMENT        49 

delivered  by  Lord  Blackburn,  and  in  the  course  of  it 
occurs  the  following  passage : — 

"  It  does  not  appear  to  their  Lordships  that  jurists  and 
text-writers  are  agreed  what  are  the  rules  .  .  .  which 
would  lead  to  the  conclusion  that  a  bay  is  or  is  not  a 
part  of  the  territory  of  the  State  possessing  the  adjoin- 
ing coasts.  ...  It  seems  to  them  that  in  point  of  fact 
the  British  Government  has  for  a  long  time  exercised 
dominion  over  this  bay,  and  that  their  claim  has  been 
acquiesced  in  by  other  nations,  so  as  to  show  that  the 
bay  has  been  for  a  long  time  occupied  exclusively  by 
Great  Britain,  a  circumstance  which  in  the  tribunals  of 
any  country  would  be  very  important.  And  moreover 
(which  in  a  British  tribunal  is  conclusive)  the  British 
Legislature  has  by  Acts  of  Parliament  declared  it  to  be 
part  of  the  British  territory,  and  part  of  the  country 
made  subject  to  the  Legislature  of  Newfoundland.  To 
establish  this  proposition  it  is  not  necessary  to  go  farther 
back  than  to  the  59  Geo.  Ill,  c.  38." 

Speaking  stricdy,  the  above  judgment,  being  merely 
an  advice  of  the  Privy  Council,  has  no  binding  effect 
upon  the  Courts.  Yet  it  would  be  idle  to  ignore  the 
great  authority  which  the  opinion  of  so  strong  a  Board, 
voiced  by  Lord  Blackburn,  must  inevitably  carry. 
Apart  from  the  importance  of  the  dictum  on  the  power 
of  the  Legislature  to  bind  the  Courts,  it  is  significant 
that  their  Lordships  proceeded  in  the  enquiry  entirely 
upon  the  lines  of  Municipal  Law.    As  was  said : — "  The 


50 


INTERNATIONAL    LAW 


question  raised  in  this  case,  and  to  which  their  Lord- 
ships will  confine  their  judgment,  is  as  to  the  territorial 
dominion  over  a  bay  of  configuration  and  dimension 
^uch  as  those  of  Conception  Bay  above  described." 
And  this  question  they  sought  to  decide  by  an  examina- 
tion primarily  of  English  authorities — the  Year  Books, 
Coke,  Hale,  and  previous  decisions. 


R.  T.  K«yn-      27.   In  the 

Distinction 

betveen 

legal  and 

diplomatic 

Bemedy. 


case  of  R.  v.  Keyn,"^  which  will  be 
dealt  with  more  fully  ni  another  connexion,"  the  same 
view  was  clearly  indicated  by  Sir  A.  Cockburn,  C.J. 
He  says:  "Now,  no  proposition  of  law  can  be  more 
incontestable  or  more  universally  admitted  than  that, 
according  to  the  general  law  of  nations,  a  foreigner, 
though  criminally  responsible  to  the  law  of  a  nation 
not  his  own  for  acts  done  by  him  while  within  the  limits 
of  its  territory,  cannot  be  made  responsible  to  its  law 
for  acts  done  beyond  such  limits.  .  .  .  The  rule  must, 
however,  be  taken  subject  to  this  qualification — namely, 
that  if  the  Legislature  of  a  particular  country  should 
think  fit  by  express  enactment  to  render  foreigners  sub- 
ject to  its  law  with  reference  to  offences  committed 
beyond  the  limits  of  its  territory,  it  would  be  incumbent 
on  the  Courts  of  such  country  to  give  effect  to  such 
enactment,  leaving  it  to  the  State  to  settle  the  question 
of  International  Law  with  the  Governments  of  other 
nations." 


'  1876,  2  Ex.  Div.  63. 
-  p.  86. 


AND    ACTS    OF    PARLIAMENT    IN    ORDINARY    COURTS        5 1 

This  admirably  expresses  the  true  modern  view  of  the 
relation  of  International  Law  to  the  law  of  the  land. 
It  is  for  the  Court  to  enforce  an  Act  of  Parliament,  how- 
ever outrageous  it  may  seem  or  however  repugnant  to 
the  plainest  rules  of  International  Law,  while  the  in- 
jured nation  is  left  to  avail  itself  of  its  diplomatic 
remedy.' 

28.  Finally,  the  law  has  been  laid  down  with  great  Morteneen  y. 
emphasis  and  precision  by  the  Scottish  Court  of  Session  ®  ^"' 
in  the  case  of  Mortens  en  v.  Peters^-  which  was  the 
case  of  a  Danish  subject  prosecuted  for  fishing  in  con- 
travention of  a  bye-law  which  extended  the  Scottish 
jurisdiction  farther  than  one  marine  league  from  the 
coast.  The  defence  was  that  the  bye-law  could  not,  on 
a  sound  construction,  be  held  applicable  to  foreigners, 
and  that  the  Court  had  no  jurisdiction  to  apply  an  Act 
in  contravention  of  International  Law.  The  accused 
was  convicted  and  sentenced ;  on  appeal  to  a  Full 
Bench,  Lord  Dunedin,  Lord  Justice-General,'  said  in 

giving  judgment: — 

"  I  apprehend  that  the  question  is  one  of  construc- 
tion and  of  construction  only.  In  this  Court  we  have 
nothing  to  do  with  the  question  of  whether  the  Legisla- 


'  For  a  good  illustration  of  this  see  the  case  of  the   Costa 
Fica  Packet,  quoted  in  i  Oppenheim,  p.  217. 
-   1906,  8  Fraser    93. 
'   Now  a  Lord  of  Appeal  in  Ordinary. 


52  INTERNATIONAL   LAW 

ture  has  or  has  not  done  what  foreign  Powers  may  con- 
sider an  usurpation  in  a  question  with  them.  Neither 
are  we  a  tribunal  sitting  to  decide  whether  an  Act  of 
the  Legislature  is  ultra  vires  as  in  contravention  of 
generally  acknowledged  principles  of  International 
Law.  For  as  an  Act  of  Parliament  duly  passed  by 
Lords  and  Commons  and  assented  to  by  the  King  it  is 
supreme,  and  we  are  bound  to  give  effect  to  its  terms. 
...  It  is  said  by  the  appellant  that  all  this  must  give 
way  to  the  consideration  that  International  Law  has 
firmly  fixed  that  a  locus  such  as  this  is  beyond  the  limits 
of  territorial  sovereignty,  and  that  consequently  it  is  not 
to  be  thought  that  in  such  place  the  legislature  could 
seek  to  affect  any  but  the  King's  subjects.  ...  It  is 
a  trite  observation  that  there  is  no  such  thing  as  a 
standard  of  International  Law  extraneous  to  the 
domestic  law  of  a  kingdom  to  which  appeal  may  be 
made.  International  Law,  so  far  as  this  Court  is  con- 
cerned, is  the  body  of  doctrine  regarding  the  rights  and 
duties  of  States  Vv^hich  has  been  adopted  and  made  part 
of  the  law  of  Scotland.  .  .  ." 

This  luminous  judgment  places  the  matter  beyond 
any  doubt,  and  may  be  regarded  as  the  best  expression 
of  the  modern  and  prevailing  view.  The  most  interest- 
ing proposition  contained  in  it  is  the  last.  Lord 
Dunedin's  view  that,  from  the  standpoint  of  the  Scot- 
tish Court,  International  Law  is  the  sum  of  doctrine  re- 
garding the  relation  of  States  with  each  other  which  has 
been  embodied  in  the  Law  of  Scotland,  logically  leads  to 


AND    ACTS    OF    PARLIAMENT    IN    ORDINARY    COURTS        53 

the  result  that  in  case  of  a  conflict  the  law  of  the  land 
must  prevail.' 

Lord   Kyllachy  delivered  a  judgment  to  the   same 

effect.    He  said: — 

"  Dealing  first  with  the  point  of  construction,   the 
question  of  what  the  statutory  enactment  means,  it  may 
probably  be  conceded  that  there  is  always  a  certain 
presumption  against  the  Legislature  of  a  country  assert- 
ing or  assuming  the  existence  of  a  territorial  jurisdiction 
going  clearly  beyond  limits  established  by  the  common 
consent  of  nations—that  is  to  say,  by  International  Law. 
Such  assertions  or  assumptions  are,  of  course,  not  im- 
possible.    The  legislature  of  a  country  is    not    quoad 
hoc  quite  in  the  same  position  as  its  Courts  of  Law 
exercising    or   claiming  to    exercise   a   jurisdiction    ex 
proprio  motu.     A  Legislature  may  quite  conceivably 
by  oversight  or  even  design  exceed  what  an  interna- 
tional tribunal  (if  such  existed)  might  hold  to  be  its 
international  rights.    Still  there  is  always  a  presumption 
against  its  intending  to  do  so.    I  think  that  is  acknow- 
ledged.   But  then  it  is  only  a  presumption,  and  as  such 
it  must  always  give  way  to  the  language  used  if  it  is 
clear,  and  also  to  all  counter-presumptions  which  may 
legitimately  be  had  in  view." 


'  It  should  be  noted  that  just  as  an  Act  of  Parliament 
may  fall  short  in  the  obligations  it  imposes  on  British 
subjects  in  pursuance  of  the  international  duties  of  Great  Britain 
so  it  may  be  in  excess  of  those  duties,  as  in  the  case  of  the 
Foreign  Enlistment  Act.     But  it  is  equally  binding. 


54  INTERNATIONAL   LAW 

Late  Mr.  29.  We  may  finally  set  the  seal  upon  the  above  pro- 

Justice         positions  by  quotino^  some  sentences  from  the  late  Mr. 

Stephen  on     ^  o        i        i 

Acts  of        Justice  Stephen  : — 

Parliament.  "  For  instance,  it  is  commonly  said  that  by  the  Law 
of  Nations  the  person  of  an  ambassador  is,  generally 
speaking,  inviolable,  and  by  the  Law  of  England  it  is  a 
misdemeanour  to  violate  his  privileges;  but  if  Parlia- 
ment were  to  pass  an  Act  putting  ambassadors  upon  the 
same  footing  in  all  respects  as  private  persons,  the 
courts,  in  case  of  need,  would  apply  that,  like  any  other 
Act  of  Parliament,  to  any  particular  case  that  might 
arise."  And  the  learned  writer  adds  in  a  footnote  on  the 
same  page : — 
"■^^  "  If  a  Court  of  Justice  avowedly  refused  to  execute 
an  Act  of  Parliament  on  the  ground  that  it  was  opposed 
to  some  moral  principle  or  to  the  law  of  nations,  I  think 
that  the  executive  government  would  not  carry  out  its 
orders,  and  that  the  judges  would  probably  be  im- 
peached and  punished.  All  that  the  courts  could  do 
in  a  direct  conflict  with  Parliament  would  be  to  protest 
against  its  legislation.  Judges  who  regarded  it  as  in- 
tolerably wicked  might  resign  or  be  removed,  but  they 
could  not  alter  it." 

Whether  Act      30.  The  reference  to  a  conflict  between  the  privileges 
of  7  Anne     -^^^^.Q^f^efj  to  diplomatic  agents  bv  International  Law  and 

gives  r  o  ^ 

exemption     those  accorded  them  by  the  law  of  the  land  suggests  a 
criminal       difficulty  in  the  interpretation  of  the  7  Anne,  c.  12.   This 

liability  ? — 

^   Hist,  of  Crim.  Law,  Vol.  II,  p.  36. 


AND    ACTS    OF    PARLIAMENT    IN    ORDINARY    COURTS        55 

Act  exempts  the  diplomatic  envoy  from  liability  to  "  all 
suits  and  processes"  of  the  country  to  which  he  is  ac- 
credited. This  means  prima  facie  exemption  from  civil 
liability ;  and  nothing  is  said  in  the  Act  which  in  express 
terms  excludes  the  operation  of  the  criminal  law.  The 
writer  of  the  article  on  Constitutional  Law  in  the  Laws 
of  England'  assumes  the  position  that  International 
Law  is  a  part  of  the  law  of  England,  and  states  the 
proposition  of  International  Law  that  diplomatic  agents 
are  exempt  from  the  criminal  law  of  the  country  to 
Avhich  they  are  accredited,  thus  leaving  it  to  be  inferred 
that  by  English  Law  also  they  are  exempt  from  the 
jurisdiction  of  the  criminal  courts. 

The  writer  ot  the  article  on  Criminal  Law.  in  the  same 
work'  declares  for  their  immunity  from  criminal  juris- 
diction in  a  limited  degree  and  places  it  upon  the  Act  of 
Anne.  "  The  Act,"  he  says,  "  seems  to  contemplate  a 
summary  proceeding,  without  the  intervention  of  a  jury, 
and  has  probably  no  application  to  arrest  on  criminal 
process."  And  in  the  earlier  part  of  the  same  article 
(p.  245)  we  find  the  following  strong  statement : — 

"  The  exemption  of  ambassadors  of  foreign  States, 
their  servants  and  retinue,  from  the  criminal  jurisdic- 
tion of  the  country  to  which  they  are  accredited,  though 
asserted  by  writers  on  International  Law,  is  not  sanc- 
tioned by  the  EngHsh  Courts  or  by  any  authority  on 

'  6  Hal.  Laws  of  England,  pp.  428-9. 
-  9  Hal.  Laws  of  England,  p.  528. 


56  INTERNATIONAL   LAW 

English  criminal  law."  For  this  statement  the  writer 
relies  on  Hale  and  on  the  well-known  case  of  Don 
Pantaleon  Sa.  Some  doubt,  too,  was  cast  upon  the 
doctrine  of  immunity  from  criminal  jurisdiction  in  the 
argument  in  the  case  of  the  Magdalena  Steam  Naviga- 
tion Co.  V.  Martini  In  this  case  the  duly  accredited 
envoy  of  the  Republic  of  Guatemala  and  New  Grenada 
was  sued  for  debts  incurred  by  him.  He  pleaded  his 
diplomatic  immunity  from  process.  In  the  course  of 
his  argument  for  the  defence  Mr.  Bovill  (afterwards 
Chief  Justice  of  Common  Pleas)  quoted  the  following 
passage  from  Vattel: — 

"  The  inviolability  of  a  public  minister,  or  the  protec- 
tion to  which  he  has  a  more  sacred  and  particular  right 
than  any  other  person,  whether  native  or  foreigner,  is 
not  the  only  privilege  he  enjoys ;  the  universal  practice 
of  nations,  moreover,  allows  him  an  entire  independence 
of  the  jurisdiction  and  authority  of  the  State  in  which  he 
resides." 

In  answer  the  following  question  was  put  by  Wight - 
man,  J. : — 

"  Does  not  that  go  rather  too  far  ?  For  it  would 
entitle  to  indemnity  in  criminal  as  well  as  in  civil  cases." 
The  question  was  not  dealt  with  by  counsel. 

It  is  submitted  that  diplomatic  envoys  have  no  im- 
munity from  the  criminal  jurisdiction  of  this  country 
given  them  by  the  Act  of  Anne.    An  exclusion  of  juris- 

^  1859,  28  L.J.Q.B.  310. 


AND   ACTS    OF    PARLIAMENT    IN    ORDINARY    COURTS        57 

diction  should  be  express  and  precise,  and  cannot  be 
presumed ;  and,  indeed,  the  well-known  maxim  of  con- 
struction would  seem  to  apply  here,  expressio  unius 
exclusio  alterhis.  On  the  other  hand,  it  might  be  argued 
that  there  is  a  presumption  that  the  Legislature  intends 
to  give  effect  to  the  rules  of  International  Law.  But 
such  presumption  could  be  rebutted,  as  Lord  Kyllachy 
stated  in  Mortensen  v.  Peters  (quoted  above),  by 
evidence  of  a  countervailing  intention,  gathered  from 
the  construction  of  the  statute.  Upon  the  whole,  then, 
it  seems  that  the  Act  itself  gives  diplomatic  envoys  no 
such  immunity  as  has  sometimes  been  claimed. 

So  much  for  the  immunity  in  so  far  as  it  rests  upon 
the  Act.  But  it  has  been  urged  that  the  Act  does  not 
supplant  but  declares  the  Common  Law.  It  is  sug- 
gested, then,  that  the  Courts  should  fall  back  upon  the 
doctrine  that  International  Law  is  embodied  in  the 
Common  Law ;  that  by  International  Law  envoys  have 
such  privilege  and  therefore  they  must  have  it  by  the 
Common  Law  as  well.  This  opens  the  larger  question 
of  the  relation  between  International  Law  and  the 
Common  Law,  which  is  dealt  with  in  a  later  chapter.' 

In  practice,  however,  there  is  some  evidence  to  show 
that  the  Courts  accord  this  immunity,  at  any  rate  in 
summary  proceedings.  Reliable  newspapers  about  two 
years  ago  contained  an  account  of  the  arrest  and  sub- 
sequent discharge,  for  the  misdemeanour  of  driving  a 

'  See  p.  75. 


58  INTERNATIONAL    LAW 

motor-car  at  an  excessive  rate,  of  the  chauffeur  to  the 
late  Baron  Marschall  von  Bieberstein,  then  German 
Ambassador  to  this  country.  Similarly,  a  footman  at 
the  Italian  Embassy  was  acquitted  from  a  charge  of 
being  drunk  and  disorderly  on  proof  of  his  identity. 
On  the  other  hand,  see  the  far  earlier  case  of  Mr. 
Gallatin's  coachman,^  in  which  this  country  seems  not  to 
have  admitted  that  any  immunity  from  criminal  jurisdic- 
tion was  conferred  by  International  Law. 


2   I  Oppenheim,  p.  474. 


CHAPTER    IV. 

Treaties  which  require  an  Act    of  Parliament  for 

their  Enforcement 

31.  We  now  pass  to  examine  the  question  whether  P'ace  of 
that    part    of    International    Law    which    rests    upon  j-ngnah  and 
conventions     forms     proprio     vigor e     part     of     the  in  American 
law   of   the   State  which  has   subscribed  to   any  such^*"- 
convention.     So  far  as  EngHsh  law  is  concerned,  the 
answer  to  the  question  is  not  entirely  free  from  doubt. 
In  German  law,  for  example,  the  matter  is  compara- 
tively simple.     A  treaty  duly  concluded  is  recognised 
and  acted  upon  by  the  Courts  if  and  when  it  has  been 
promulgated  in  the  Reichsgesetzblait.     In    American 
law  also  the  Courts  act  upon  a  treaty  without  further 
legislation,!  as  Dr.  Westlake  points  out' : — 

"  In  the  United  States  it  is  otherwise  (i.e.,  than  in 
England),  for  the  sixth  article  of  the  Constitution  pro- 
vides that  all  treaties  made  or  which  shall  be  made 
under  the  authority  of  the  United  States  shall  be  the 
supreme  law  of  the  land,  and  the  judges  in  every  State 
shall  be  bound  thereby,  anything  in  the  Constitution  or 

t  p.  III. 

'  1906,  22  L.Q.R.,  p.  14. 


6o  INTERNATIONAL   LAW 


i- 


law  of  any  State  to  the  contrary  notwithstanding.' 
Hence,  when  the  ninth  article  of  the  Jay  Treaty  in  1794 
enabled  the  subjects  of  either  country  to  hold  lands  in 
the  other,  and  to  sell  and  devise  them  as  if  they  were 
natives,  this  stipulation  at  once  took  effect  in  the  United 
States  in  favour  of  British  subjects,  repealing  of  itself 
so  much  either  of  the  Common  or  Statute  Law  on  the 
disabilities  of  aliens  as  stood  in  its  way,  while  on  our 
side  of  the  Atlantic  an  Act  of  37  Geo.  Ill  had  to  be 
passed.  .  .  .  This  difference  might  seem  to  imply  that 
the  rule  of  International  Law  requiring  that  treaties 
shall  be  observed  was  incorporated  in  the  law  of  the 
United  States  though  not  with  that  of  England.  But 
it  is  not  so.  The  difference  is  merely  that  the  Executive 
possesses  in  the  United  States  a  power  of  making  law 
by  treaty  not  paralleled  in  England." 

Ratification  32.  From  the  standpoint  of  the  international  lawyer 
of  Treaties  ^  treaty,  in  order  to  be  binding  upon  the  parties  who 
distinct  from  have  set  their  hands  to  it,  must  fulfil  two  main  condi- 
their  tions :  it  must  (i)  be  signed  by  duly  accredited  repre- 

approYaiby  ggj^^^^^iygs,  and  (2)  it  must  be  ratified.  "Ratification," 
Parliament.  •    '' 

says  Professor  Oppenheim,'  "  is  the  term  for  the  final 
confirmation  given  by  the  parties  to  an  international 
treaty  concluded  by  their  representatives."  Further, 
it  is  to  be  noted  that  International  Law  is  not  concerned 
to  know  or  to  enquire  as  to  the  organ  of  the  State  which 


I  Oppenheim  (1912),  p.  553. 


TREATIES    AND    ACTS    OF    PARLIAMENT  6 1 

has  concluded  or  ratified  the  treaty,  so  long  as  that  organ 
is  the  proper  and  legal  organ  in  which  such  power  has 
been  competently  vested  by  the  law  of  the  State  that 
makes  the  treaty.  Now  in  England  the  question  of 
ratification  presents  some  difficulty.  In  Enghsh  Law 
the  treaty-making  power  resides  pima  facie  in  the 
Crown ;  and  it  would  seem  to  follow  from  this  that  the 
proper  body  to  accord  ratification  to  a  treaty  would  be 
the  Crown  in  Council,  i.e.,  the  Privy  Council.  But  the 
question  cannot  be  so  simply  answered  owing  to  the 
fact  that  there  are  clear  rules  of  English  Law  which 
necessitate  the  intervention  of  Parhament  before  a 
treaty  on  certain  matters  can  be  binding  upon  British 
subjects.'  Thus  the  writers  of  the  article  on  Constitu- 
tional Law  in  the  Laws  of  England  make  the  following 
statement' : — 

"  In  England  there  is  no  codified  list  of  subjects  upon 
which  the  Crown  has  power  to  bind  the  subject  by  treaty 
without  parliamentary  sanction.  But  where  any  reason- 
able doubt  arises  it  is  usual  either  to  obtain  statutory 
authority  beforehand,  or  to  stipulate  in  the  treaty  that 
the  consent  of  the  Legislature  shall  be  obtained." 

33.  We  shall  now  consider  the  cases  in  which  the  When  may 

Crown  can  bind  subiects  by  treaty,  and  those  cases  in***^  ^v^mn 

.        .  bind  subjects 

which  parliamentary  intervention  is  necessary.  by  Treaty? 

^  But  of  course  the  ratification  of  a  treaty  must  be  kept  dis- 
tinct from  its  approval  by  Parliament  and  from  the  legislation 
uhich  may  be  necessary  to  make  it  binding  on  British  subjects. 

-  6  Hal.  Laws  of  England,  p.  440  n(e). 


62  INTERNATIONAL    LAW 

We  may  begin  with  Blackstone,  who  says' : — 
"  It  is  also  the  Sovereign's  prerogative  to  make 
treaties,  leagues,  and  alliances  with  foreign  States  and 
princes.  For  it  is  by  the  law  of  nations  essential  to  the 
goodness  of  a  league  that  it  be  made  by  the  sovereign 
power ;  and  then  it  is  binding  on  the  whole  community, 
and  in  England  the  sovereign  power  quoad  hoc  is 
vested  in  the  King.  Whatever  contracts,  therefore,  he 
engages  in  no  other  power  in  the  kingdom  can  legally 
delay,  resist,  or  annul." 

ifaitiand.  3^.   Maitland's   comment   upon    this   is   simple    and 

direct,  and  amounts  to  a  flat  contradiction." 

"...  We  may,  I  beheve,  say  that  a  treaty  made  by 
the  King  in  general  has  no  legal  effect  whatever.  The 
King,  as  just  said,  can  make  peace  and  can  make  war, 
and  the  making  of  either  will,  of  course,  have  important 
effects :  whether  an  act  be  a  laudable  attack  on  a  public 
enemy,  or  mere  piracy,  is  one  of  the  many  questions 
that  might  thus  be  decided.  Also  it  seems  certain  that 
as  an  incident  to  a  treaty  of  peace  the  King  may  cede 
territory,  may  at  all  events  cede  territory  acquired  by 
him  during  the  war.  Exactly  how  far  this  power  extends 
is  a  somewhat  debatable  matter,  and  I  think  it  very 
doubtful  whether  the  Queen  can  cede  land  subject  to  the 
British  Parliament  except  in  a  treaty  of  peace.     Could 

^  Commentaries,  I.  C.7.11. 

^  Constitutional  History,  p.  424. 


TREATIES  AND  ACTS  OF  PARLIAMENT        6$ 

she  sell  Jersey,  Guernsey,  or  Kent  to  France  ?    I  much 
doubt  it." 

He  then  goes  on  to  illustrate  his  proposition  by  refer- 
ence to  the  Extradition  Acts,  which  were  necessary  in 
order  to  enable  the  Crown  to  give  effect  to  its  treaties. 
And  indeed  we  find  a  long  list  of  Acts  of  Parliament 
passed  in  order  to  enable  the  Crown  to  perform  obliga- 
tions without  which  it  would  have  been  unable  to  per- 
form. We  may  notice  that  some  of  these  treaties 
actually  contain  clauses  in  which  the  Crown  through  its 
representatives  engages  to  propose  the  necessary  legis- 
lation, as  in  the  case  of  the  cession  of  Heligoland  in 
1890  made  ''subject  to  the  assent  of  ParHament." 


35.   Legislation  has  been  necessary  in  various  fishery  Treaties 
conventions,  notably  the  treaty  with  America  in  1818,  ^J^ 
"to  enable  Her  Majesty  to  make  regulations  with  re- rendered 
spect  to  Newfoundland  according  to  a  convention  made  ^*'^«''"'e  ^'y 
with  the  United  States,"  as  is  stated  m  the  preamble,  parliament. 
The  Treaty  of  Versailles  with  France  in  1783  was  effec- 
tuated by  the  Act  28  Geo.  HI,  c.  35. 

It  is  at  least  not  certain  whether  the  Declaration  of 
London  would  have  required  an  Act  of  Parliament  in 
order  to  make  it  binding  on  all  our  Courts.'  As  a  treaty, 
duly  signed,  a  Court  of  Prize  would,  it  seems,  have  been 
bound  by  its  provisions  had  it  been  ratified.  Formal 
ratification,  however,  has  not  taken  place.     An  Ordei 

'   Sec  N.  Bcntwlch,  The  Declaration  of  London,  p.  126. 


64  INTERNATIONAL    LAW 

in  Council  of  August  20th,  19 14,  decreed  that,  subject  to 
certain  restrictions  and  modifications  specified  in  the 
Order,  the  Declaration  should  be  put  in  force  as  if  it 
had  been  ratified,  and  further,  that  the  General  Report 
of  the  Drafting  Committee  should  be  taken  as  an  autho- 
ritative statement  of  the  intention  of  the  Declaration  in 
all  Prize  Courts  (s.  6).  The  true  position  therefore 
seems  to  be  that  while  the  Declaration  of  London,  as  an 
unratified  agreement,  is  not  binding,  certain  Orders  in 
Council,  incorporating  in  fact  its  main  provisions,  are, 
as  Municipal  Law,  of  authority  in  Courts  of  Prize/ 

Sir w.  Anson      36.  The  late  Sir  W.  Anson,'  too,  had  grave  doubts 

extent  of  the  ^^  ^°  ^^  extent  of  the  prerogative  of  the  Crown.      He 
Prerogative,  expresses  his  view  thus : — 

"  It  would  seem  to  follow  from  the  general  principles 
of  our  constitution  that  a  treaty  which  lays  a  pecuniary 
burden  on  the  people  or  which  alters  the  law  of  the  land 
needs  parliamentary  sanction.  If  it  were  not  so  the 
King,  in  virtue  of  this  prerogative,  might  indirectly  tax 
or  legislate  without  consent  of  Parliament." 

His  view  of  the  matter  may  be  embodied  in  the  fol- 
lowing propositions: — 

{a)  That  as  regards  cession  of  territory,  the  tendency 
has  been  in  the  direction  of  obtaining  parliamen- 
tary sanction  in  the  form  of  an  Act. 

'  Subject,  it  would  seem,  to  their  conformity  with  Inter- 
national Law,  see  above,  p.  46. 

^  Anson  on  the  Constitution,  III,  p.   103,  Edition  1908. 


TREATIES  AND  ACTS  OF  PARLIAMENT        65 

(b)  That  there  is  some  authority  for  the  view  that 

territory  acquired  by  conquest  may  even  in  time 
of  peace  be  ceded  in  virtue  of  the  prerogative, 
and  territory  for  which  the  Crown  in  Council 
legislates.    (Cf.  Maitland's  view,  quoted  above.) 

(c)  That  at  the  close  of  a  war  thfe  prerogative  of 

cession  is  wider  than  in  time  of  peace. 
On  the  occasion  of  the  cession  of  Heligoland  in  1890 
the  Government  was  advised  to  embody  in  the  treaty 
a  clause  making  the  cession  conditional  upon  the  assent 
of  Parliament.'  There  have  been  many  cases  of  cession 
of  Indian  territory  in  virtue  of  the  prerogative  alone; 
but.  these  the  learned  writer  keeps  apart. 

But,  on  the  other  hand,  he  points  out  that  even 
treaties  ceding  territory  at  the  end  of  a  war  may  affect 
private  rights  in  innumerable  ways.  Thus  they  may 
effect  a  change  of  nationality  of  all  those  persons  who  do 
not  exercise  the  right  of  option  nowadays  contained  in 
most  treaties  of  cession ;  they  may  change  the  tenure 
of  land  by  subjecting  the  ceded  persons  to  a  new  law. 
Again,  where  the  territory  ceded  was  ceded  to  and  not 
by  the  Crown,  the  effect  of  the  cession  might  be  to 
impose  a  new  tax  on  the  subjects  of  the  Crown.  All 
this  makes  it  difficult  to  say  with  any  certainty  that  even 
treaties  consequent  upon  war  can  be  made  in  virtue  of 
the  prerogative  alone.     Thus  in  the  place  of  the  anti- 

'  The  same  course  was  followed  in  the  case  of  some  cessions 
to  France  in  1904. 


66  INTERNATIONAL   LAW 

thesis  between  treaties  made  in  time  of  peace,  which 
do,  broadly,  require  an  Act  of  ParHament,  and  treaties 
made  consequent  upon  a  war,  which,  broadly,  do  not, 
the  antithesis  seems  to  be  one  between  those  treaties 
which  affect  private  rights  and  those  which  do  not.  This 
view  is  clearly  stated  both  by  the  late  Dr.  Westlake 
and  the  writers  of  the  article  on  Constitutional  Law  in 
the  Laws  of  England.     The  former  says' : — 

"  The  English  Courts  must  enforce  rights  given  by 
International  Law  .  .  .  subject  to  the  rules  that  the 
King  cannot  divest  or  modify  private  rights  by  treaty 
(with  the  possible  exception  of  treaties  of  peace,  or 
treaties  equivalent  to  those  of  peace),  and  that  the 
Courts  cannot  question  Acts  of  State." 

And  the  second  authority  takes  this  view' : — 
"  Thus,  though  treaties  relating  to  war  and  peace,  the 
cession  of  territory,  or  concluding  alliances  with  foreign 
Powers,  are  generally  conceded  to  be  binding  upon  the 
nation  without  express  parliamentary  sanction,  it  is 
deemed  safer  to  obtain  such  sanction  in  the  case  of  an 
important  cession  of  territory.  And  where  taxation  is 
imposed  or  a  grant  from  public  funds  rendered  neces- 
sary, or  where  the  existing  laws  of  trade  or  navigation 
are  affected,  or  where  the  private  rights  of  the  subject 
are  interfered  with  by  a  treaty  concluded  in  time  of 
peace,  it  is  apprehended  that  the  previous  or  subsequent 

'  1906,  22  L.Q.R.  26. 

-  6  Hal.  Laws  of  England,  p.  440. 


TREATIES  AND  ACTS  OF  PARLIAMENT        67 

consent  of  Parliament  is  in  all  cases  required  to  render 
the  treaty  binding  upon  the  subject  and  enforceable  by 
officers  of  the  Crown." 

37.  The  cases  that  deal  with  the  point  are  few  and  ^j^^  -Parie- 
their  pronouncements  neither  entirely  clear  nor  satis- ment  Beige," 
factory.     The    Parlement  Beige"   was  the   case   of  a  *^''^- 
Belgian  steamship  sued  by  the  owner  of  the  steam-tug 
"  Darine"  for  damasfes  for  collision  caused  by  her  bad 
and  negligent  navigation.    Counsel  appeared  on  behalf 
of  the  Crown  to  raise  the  objection  that  in  virtue  of  a 
convention  made  between  Her  Majesty  and  the  King 
of  the  Belgians  the  character  of  a  public  vessel  was  con- 
ferred on  the  "  Parlement  Beige."       Counsel  for  the 
Crown    laboured   to    show   that   all   matters    affecting 
foreign  relations,  all  matters  of  the  recognition  of  the 
status  of  a  foreign  person  or  thing,  were  Act  of  State 
within  the  power  of  the  prerogative,  and  beyond  ques- 
tion in  an  English  Court. 

In  the  course  of  his  judgment  the  learned  President 
observed : — 

"  It  is  admitted  that  this  convention  has  not  been  con- 
firmed by  statute;  but  it  has  been  contended  on  the 
part  of  the  Crown  both  that  it  is  competent  to  her 
Majesty  to  make  this  convention  and  also  to  put  its  pro- 
visions into  operation  without  the  confirmation  of  them 
by  Parliament.  The  plaintiffs  admit  the  former  but 
deny  the  latter  proposition." 

»  1879,  4.  P.O.  129. 


68  INTERNATIONAL    LAW 

The  learned  President  then  quoted  the  classic  pas- 
sao-e  from  Blackstone  set  forth  above/  and  continued 
thus : — 

"  The  learned  writer,  however,  was  certainly  aware 
that  this  general  proposition  must  receive  some  modifi- 
cation and  restraint  besides  that  which  he  has  men- 
tioned. Blackstone  must  have  known  very  well  that 
there  was  a  class  of  treaties  the  provisions  of  which  were 
inoperative  without  the  confirmation  of  the  legislature ; 
while  there  were  others  which  operated  without  such 
confirmation.  The  strongest  instance  of  the  latter,  per- 
haps, which  could  be  cited  is  the  Declaration  of  Paris 
of  1856,  by  which  the  Crown  in  the  exercise  of  its 
prerogative  deprived  this  country  of  belligerent  rights 
which  very  high  authorities  in  the  State  and  in  the  Law 
considered  to  be  of  vital  importance  to  it.  But  this 
Declaration  did  not  affect  the  private  rights  of  the  sub- 
ject ;  and  the  question  before  me  is  whether  this  treaty 
does  affect  private  rights,  and  therefore  required  the 
sanction  of  the  legislature." 

The  case  was  again  argued  on  appeal"  before  Brett, 
James,  and  Baggallay,  L.J  J.  Their  Lordships  allowed 
the  appeal  on  the  ground,  however,  that  the  "  Parlement 
Beige"  was  the  public  property  of  the  Belgian  State, 
and  so  shared  the  general  immunity  from  arrest  of  such 
property.     The  success  of  the  appeal,  therefore,  rested 


See  p.  62. 

1880,  5  P.D.  197. 


TREATIES  AND  ACTS  OF  PARLIAMENT        69 

Upon  a  point  other  than  that  of  the  competence  of  the 
Crown  to  make  such  a  treaty  without  the  intervention  of 
Parhament.  It  is  to  be  regretted  that  we  have  not  had 
the  inestimable  benefit  of  the  opinion  of  so  strong  a 
Court  upon  this  question.  It  is,  however,  sufficiently 
clear  from  the  remarks  of  Sir  Robert  Phillimore  that  he 
accepted  the  distinction  that  has  been  drawn  between 
those  treaties  which  touch  private  rights  and  those  which 
do  not,  and  held  that  the  former  category  could  not  be 
binding  on  an  English  court  without  legislation. 

38.  Walker  v.  Baird'  was  an  appeal  to  the  Judicial  Walker  y. 
Committee  of  the  Privy  Council  from  the  Supreme  ^**^'^'  ^®^^* 
Court  of  Newfoundland  against  a  judgment  in  favour 
of  the  respondents  in  an  action  for  trespass  and  detinue 
against  the  captain  of  H.M.S.  "  Emerald"  (the  present 
appellant)  for  wrongfully  entering  the  respondent's 
lobster  factory  and  keeping  possession  of  the  same  for 
a  long  time,  etc.,  etc.,  on  the  ground  that  he  had  been 
entrusted  by  the  Admiralty  with  the  task  of  putting  into 
force  an  agreement  made  between  Her  Majesty  the 
Queen  and  the  Government  and  Republic  of  France. 
The  defence  was  Act  of  State,  and  judgment  was  given 
for  the  plaintiff.  It  was  on  this  point  that  the  appeal 
turned  and  was  decided,  although  the  question  was 
raised  as  to  how  far  the  Crown  by  treaty  can  bind  its 
subjects,  as  appears  from  the  following  observations  of 

*  1892,  A.C.  491 


JO  INTERNATIONAL   LAW 

Lord  Herschell,  C,  who  gave  the  opinion  of  the  Privy 

Council : — 

"  The  learned  Attorney-General,  who  argued  the  case 
before  their  Lordships  on  behalf  of  the  appellant,  con- 
ceded that  he  could  not  maintain  the  proposition  that 
the  Crown  could  sanction  an  invasion  by  its  oflficers  of 
the  rights  of  private  individuals  whenever  it  was  neces- 
sary in  order  to  compel  obedience  to  the  provisions  of 
a  treaty.  The  proposition  he  contended  for  was  a  more 
limited  one.  The  power  of  making  treaties  of  peace 
is,  as  he  truly  said,  vested  by  our  Constitution  in  the 
Crown.  He  urged  that  there  must  of  necessity  also 
reside  in  the  Crown  the  power  of  compelling  its  subjects 
to  obey  the  provisions  of  a  treaty  arrived  at  for  the  pur- 
pose of  putting  an  end  to  a  state  of  war.  He  further 
contended  that,  if  this  be  so,  the  power  must  equally 
extend  to  the  provisions  of  a  treaty  having  for  its  object 
the  preservation  of  peace  ;  that  an  agreement  which  was 
arrived  at  to  avert  a  war  which  was  imminent  was  akin 
to  a  treaty  of  peace,  and  subject  to  the  same  constitu- 
tional law.  Whether  the  power  contended  for  does  exist 
in  the  case  of  treaties  of  peace,  and  whether,  if  so,  it 
exists  equally  in  the  case  of  treaties  akin  to  treaties  of 
peace,  or  whether  in  both  or  either  of  these  cases  inter- 
ference with  private  rights  can  be  authorised  otherwise 
than  by  the  legislature,  are  grave  questions  upon  which 
their  Lordships  do  not  find  it  necessary  to  express  an 
opinion." 


TREATIES    AND    ACTS    OF   PARLIAMENT  7 1 

39.   It  seems,  then,  that  the  authorities  upon  which  Difficaity  of 

we  have  to  rely  in  attempting  to  frame  a  clear  proposi-  deciding 

which 
tion  of  law  on  this  difficult  matter  are,   in  many  in-  Treatiei  do, 

stances,    uncertain    and    hesitating.      We    are    driven,  and  which 

therefore,   to  say  this:  that  whatever  be  the  theories '^°°°'**^®'^' 
'  ^  .    private 

of  the  text-book,  these  have  been  rendered  of  academic  rights. 
rather  than  of  practical  importance  by  the  undoubted 
modern  practice  of  incorporating  all  treaties  affecting 
private  rights  in  Acts  of  Parliament,  and  so  enabling 
the  Crown  to  perform  to  the  full  all  its  contractual  obli- 
gations with  foreign  States.  We  may  go  a  step  further, 
and  say  that  so  difficult  to  draw  is  the  line  between  those 
treaties  which  affect  private  rights  and  those  which  do 
not,  and  so  difficult  is  it  to  imagine  a  treaty  which  does 
not,  that  in  most  cases  the  passing  an  act  by  the  legis- 
lature would  seem  the  more  correct  and  advisable  course. 

Now,  if  the  above  reasoning  be  correct,  we  are  in  a 
far  better  position  to  answer  the  question  with  which  we 
started:  How  far  is  International  Law  part  of 
English  law  in  respect  of  treaties?  The  reply 
is  in  the  negative  as  regards  those  which  affect 
private  rights  and  existing  statutes ;  so  that  in 
each  case,  when  a  treaty  or  convention  made  between 
the  Crown  and  a  foreign  State  imposes  some  obligation 
upon  the  subjects  of  the  Crown,  and  an  Act  of  Parlia- 
ment is  passed  in  order  to  render  effectual  its  provisions, 
the  subjects  of  the  Crown  perform  such  obligations 
because  they  are  commanded  to  do  so  by  their  own  law. 
and  in  no  other  way  whatsoever. 


72  INTERNATIONAL   LAW 

We  may  conclude  this  part  of  the  subject  with  some 
general  observations  of  Professor  Oppenheim' : — 

"  It  must  be  specially  observed  that  the  binding  force 
of  a  treaty  concerns  the  contracting  States  only,  and  not 
their  subjects.  As  International  Law  is  a  law  between 
States  only  and  exclusively,  treaties  can  have  effect 
upon  States  only.  If  treaties  contain  stipulations  with 
regard  to  rights  and  duties  of  the  contracting  States' 
subjects,  courts,  officials,  and  the  Hke,  these  States  have 
to  take  such  steps  as  are  necessary,  according  to  their 
Municipal  Law,  to  make  these  stipulations  binding 
upon  their  subjects,  courts,  officials,  and  the  Hke.  It 
may  be  that,  according  to  the  Municipal  Law  of  some 
countries,  the  official  publication  of  a  treaty  concluded 
by  the  Government  is  sufficient  for  this  purpose ;  but 
in  other  countries  other  steps  are  necessary,  such  as,  for 
example,  special  statutes  to  be  passed  by  the  respective 
Parliaments." 

Effect  of  23        40.  Since  the  above  was  written  the  full  Court  of 

Hi    c".   ^PP^^l  (consisting  of  Lord  Reading,  C.J.,  Lord  Cozens- 

ventionon     Hardy,  M.R.,  and  Buckley,  Kennedy,  Swinfen  Eady, 

Disability  of  pickford,  and  Phillimore,  L.II.)  has  delivered  its  jud^- 
Alicn  Enemy  .  .   .      ^  ,    ,  ^      ^ 

in  English     rn^nt  on  certam  matters  arismg  out  of  the  present  war. 

Court.  The  judgment  contains  an  exhaustive  review  of  the  law 

relating  to  the  disabilities  of  alien  enemies  to  sue  in  the 

King's  Courts  that  are  imposed  by  the  Common  Law. 

It  then  continues  as  follows : — 

^   I  Oppenheim,  p.  562  (1912). 


TREATIES    AND   ACTS    OF   PARLIAMENT  J^ 

"  Having  stated  the  Common  Law  of  England  in 
regard  to  the  question  of  the  ahen  enemy's  rights  to  sue 
in  our  Courts  of  Law,  we  have  now  to  consider  whether 
the  Hague  Convention  of  1907  on  the  Laws  and 
Customs  of  Land  Warfare,  Article  23  (h)  of  c.  i  of  s.  2 
of  the  Annex  .  .  .  has  any  bearing  upon  the  questions 
we  have  to  determine.  .  .  . 

"  It  is  particularly  forbidden  ...  to  declare  abolished, 
suspended,  or  inadmissible  the  right  of  the  subjects  of 
the  hostile  party  to  institute  legal  proceedings." 

As  a  fact,  the  Court  came  to  the  conclusion  that  this 
prohibition  applied  only  in  the  case  of  a  military  occupa- 
tion, and  merely  placed  a  limit  upon  the  authority  exer- 
cised by  the  commander  over  the  inhabitants  of  the 
occupied  territory.  But  what  is  of  importance  is  the 
impression  conveyed  by  the  terms  of  the  judgment  that 
the  only  question  before  the  Court  was  whether  the 
Hague  Convention  applied  to  the  general  disability  of 
an  alien  enemy,  or  whether  it  had  merely  the  restricted 
application  stated  above ;  and  that,  if  the  Court  had 
been  of  opinion  that  it  possessed  the  wider  meaning, 
it  would  have  acted  upon  it  as  upon  a  rule  of  English 
Law.  That  this  impression  is  not  without  foundation  is 
favoured  by  the  order  in  which  the  subject  is  treated — 
in  close  connexion  with  and  following  upon  the  discus- 
sion of  alien  enemy  disabilities  in  English  Law. 

If  this  view  is  correct,  then  the  important  and  difficult 
question  might  arise  whether  or  no  the  Convention 
would  have  been  without  more  and  of  itself  binding 


74  INTERNATIONAL   LAW 

Upon  the  Court.  It  is  at  least  doubtful  whether  the 
whole  of  Article  23  (h)  could  be  acted  upon  in  an 
English  Court  without  legislation.  But,  in  view  of  the 
fact  that  the  Court  of  Appeal  refused  to  place  the  wider 
interpretation  upon  the  Convention,  it  becomes  un- 
necessary to  attempt  to  solve  the  problem.  Even  if 
this  wider  meaning  had  been  given  the  Article  in  ques- 
tion, so  great  a  change  in  Municipal  Law  would  have  re- 
quired an  Act  of  Parliament.  Lastly,  it  should  be  added, 
the  Court  seems  to  have  assumed,  for  the  purposes  of  the 
discussion,  that  the  Fourth  Hague  Convention  was  bind- 
ing as  between  the  beUigerents.^ 


See  p.  45. 


CHAPTER   V. 

International    Law   and    the    Common    Law    of 

England. 

41.  We  now  approach  the  most  difficult  branch  of  international 
the  enquiry.     We  have  seen  that  it  is  not  true  to  say^**°® 
that  International  Law  is  part  of  the  law  of  the  land  in  ^^  Law  of 
the  sense  that  it  prevails  over  an  Act  of  Parliament  Nature, 
which  sets  aside  its  rules,  whether  in  an  ordinary  Court 
of  the  land  or  in  a  Prize  Court ;  also  that  it  cannot  be 
said  to  be  part  of  the  law  of  the  land  in  the  sense  that 
treaties  or  conventions  are  in  themselves  binding  upon 
our  Courts,  except  in  Courts  of  Prize.     Therefore  the 
next  question  is  whether  that  part  of  International  Law 
which  rests  upon  the  custom  of  States  as  opposed  to 
that  which  rests  upon  treaties — in  other  words  customary 
as  opposed  to  conventional  International  Law — can  be 
truly  and  accurately  said  to  be  part  of  the  law  of  the 
land  where  no  Act  of  Parliament  embodies  it  in  itself. 
Is  customary  International  Law  part  of  the  Common 
Law? 

In  this  enquiry  there  are  two  propositions  which  we 
should  bear  well  in  mind  : — 

(a)  That  to  the  lawyers  of  the  eighteenth  and  the 


76  INTERNATIONAL   LAW 

early  part  of  the  nineteenth  century,  the  Common  Law 
was  still  the  expression  of  the  rules  of  "  right  reason" 
or  "  natural  justice."  Even  Lord  Stowell  and  Sir 
Robert  Phillimore  in  passages  already  quoted  lay  it 
down  as  the  plain  duty  of  a  judge  to  disregard  an  Act 
of  Parliament  repugnant  to  those  principles  of  right  on 
which  the  Common  Law  rested. 

(b)  That  until  some  sixty  years  ago  the  Naturalistic 
conception  of  International  Law  was  not  clearly  sepa- 
rated from  the  Positivistic.    International  Law  was  still 
regarded  as  consisting  of  principles  of  right  and  moral 
action  for  States,  resting  in  the  main  upon  the  a  priori 
speculations  of  jurists.    In  other  words,  the  conception 
of  the  law  as  it  is  was  not  clearly  separated  from  the 
conception  of  the  law  as  it  ought  to  be.    These  a  priori 
speculations  were  to  some  extent  supported  by  evidence 
of  practice,  but  it  is  certain  that  this  played  the  lesser 
part.    The  combined  effect  of  these  two  propositions  is 
that  since  International  Law  rests  upon  rules  of  true 
morality,  and  since  the  Common  Law  is  the  embodiment 
of  such  rules,  International  Law  must  be  part  of  the 
Common  Law.     Accordingly  we  are  able  to  see  the 
changing  notion  of  the  basis  of  International  Law  re- 
flected in  the  judgments  of  the  English  Courts.     We 
shall  see  how  the  early  decisions  of  the  eighteenth  cen- 
tury declare  in  sweeping  terms  that  International  Law 
is  part  of  the  Common  Law  in  its  full  extent,  while  those 
of  more  modern  times  accept  the  proposition  only  with 
many  safeguards  and  hedged  around  with  the  most  care- 


AND    THE    COMMON    LAW  "]"] 

ful  limitations,  until  we  reach  the  cuhninating  point,  the 
judgment  in  the  West  Rand  Central  Gold  Mining 
Company  v.  Rex,'  which  may  be  described  as  the  locus 
classicus  on  the  subject. 

42.   If  we  take  as  our  starting  point  the  Act  of  7  Anne  Act  of  7 

we  find  that  the  opinion  was  held  by  eminent  lawyers  of   ""!,  *" 

^  ■'  the  Common 

the  day  that  the  Act  was  not  intended  to  make  new  law.  Law.Triquet 
It  merely  declared  the  Common  Law.  '^-  ^***''  ^'^^^ 

Triquet  v.  Bath'  was  a  case  which  turned  on  the 
question  whether  the  defendant  was  a  domestic  seryant 
of  a  foreign  minister,  and  whether  he  was  entitled  to  the 
diplomatic  priyilege.  In  the  course  of  the  argument 
"  Mr.  Blackstone  observed  that  the  Act  of  Parliament 
of  7  Anne  c.  12  was  not  any  alteration  of  the  law  of 
nations  from  what  it  was  before :  for  that  ambassadors 
and  their  attendants  were,  by  the  general  law  of  nations, 
intitled  to  the  same  priyilege,"  and  Lord  Mansfield,  C.J., 
remarked :  "  This  privilege  of  foreign  ministers  and 
their  domestic  servants  depends  upon  the  law  of  nations. 
The  Act  of  Parliament  of  7  Anne  c.  12  is  declaratory  ot 
it.  All  that  is  new  in  this  Act  is  the  clause  which  gives 
a  summary  jurisdiction  for  the  punishment  of  the  in- 
fractions of  the  law.  ...  I  remember  in  a  case  before 
Lord  Talbot  of  Biroot  v.  Barbuit  ....  these  questions 
arose  and  were  discussed  .  .  .  whether  being  a  trader 
was  any  objection  against  allowing  privilege  to  a  minis- 

'  1905,  2  K.B.  391. 

-   1764,  3  Burr.   1478. 


78  INTERNATIONAL   LAW 

ter,  personally  .  .  .  whether  an  agent  of  commerce  or 
even  a  consul  was  entitled  to  the  privilege  of  a  public 
minister  .  .  .  what  was  the  rule  of  decision :  the  Act  of 
Parliament,  or  the  Law  of  Nations.  Lord  Talbot  de- 
clared a  clear  opinion  '  that  the  Law  of  Nations  in  its 
full  extent  was  part  of  the  Law  of  England,  that  the 
Act  of  Parliament  was  declaratory ;  and  occasioned  by 
a  particular  incident.  That  the  Law  of  Nations  was  to 
be  collected  from  the  practice  of  different  nations  and 
the  authority  of  writers.'  Accordingly  he  argued  and 
determined  from  such  instances  and  the  authority  of 
Grotius,  Barbeyrac,  Bynkershoek,  Wicquefort,  etc., 
there  being  no  English  writer  of  eminence  upon  the 
subject. 

"  I  was  Counsel  in  this  case  and  have  a  full  note  of  it. 
I  remember,  too.  Lord  Hardwicke's  declaring  his  opinion 
to  the  same  effect,  and  denying  that  Holt,  C.J.  ever  had 
any  doubt  as  to  the  Law  of  Nations  being  part  of  the  law 
of  England,  upon  the  occasion  of  the  arrest  of  the  Rus- 
sian Ambassador." 


Heathfieid  ^3.  The  case  of  Heathfield  v.  Chilton'  also  turned 
T.  Chilton,  upon  a  point  of  diplomatic  privilege.  Per  Lord  Mans- 
"''•  field,  C.J. :- 

"  The  privileges  of  public  ministers  and  their  retinue 
depend  upon  the  Law  of  Nations ;  which  is  part  of  the 
Common  Law  of  England.  And  the  Act  of  Parliament  of 


*   1767,  4  Burr.  2016, 


AND    THE    COMMON    LAW  79 

7  Anne  c.  12  did  not  intend  to  alter  nor  can  alter  the 
Law  of  Nations  ...  the  Law  of  Nations  will  be  carried 
as  far  in  England  as  anywhere,  because  the  Crown  can 
do  no  particular  favours,  affecting  the  rights  of  subjects, 
in  compliment  to  public  ministers,  or  to  satisfy  their 
points  of  honour." 

44.  Blackstone,   who,  it  is  interesting  to  note,   had  Biackstone. 
been  engaged  in  Tnquet  v.  Bath,  expresses  the  same 

view  in  his  Commentaries.'  "  The  Law  of  Nations,"  he 
says,  "  (whenever  any  question  arises  which  is  properly 
the  object  of  its  jurisdiction)  is  here  adopted  to  its  full 
extent  by  the  Common  Law,  and  is  held  to  be  a  part  of 
the  law  of  the  land.  And  those  Acts  of  Parliament 
which  have  from  time  to  time  been  made  to  enforce  this 
universal  law,  or  to  facilitate  the  execution  of  its  deci- 
sions, are  not  to  be  considered  to  be  introductive  of  any 
new  rule,  but  merely  as  declaratory  of  the  old  funda- 
mental constitutions  of  the  kingdom,  without  which  it 
must  cease  to  be  a  part  of  the  civiHsed  world." 

45.  In  the  next  case  the  question  how  far  a  consul  Yiveash  t. 
shares  diplomatic  immunities  was  under  discussion,  that  ^^^^ 

of  Viveash  v.  Becker^'  Lord  Ellenborough,  C.J.  in 
his  judgment  said : — "  Every  person  who  is  conversant 
with  rfie  history  of  this  country  is  not  ignorant  of  the 


'  Book  IV,  s.  67. 

-   i8t4,  3  M.  and  S.  284. 


8o  INTERNATIONAL   LAW 

occasions  which  led  to  the  passing  of  the  Statute  of 
7  Anne  c.  12.  An  ambassador  of  the  Czar  had  been 
arrested  and  had  put  in  bail ;  and  this  matter  was  taken 
up  with  considerable  inflammation  and  anger  by  several 
of  the  European  Courts.  In  order  to  soothe  the  feel- 
ings of  these  Powers  the  Act  of  Parliament  was  passed, 
in  which  it  was  thought  fit  to  declare  the  immunities  and 
privileges  of  ambassadors  and  public  ministers  from  pro- 
cess. .  .  There  is  not,  I  believe,  a  single  writer  on  the 
Law  of  Nations,  nor  even  of  those  who  have  written 
looser  tracts  on  the  same  subject,  who  has  pronounced 
that  a  consul  is  a  public  minister,  and  unless  he  be  such 
he  is  not  within  the  comprehension  of  the  Act  of  Parlia- 
ment. It  has  been  very  truly  said  that  the  Act  is  de- 
claratory of  the  Common  Law  and  of  the  Law  of  Nations, 
and  hence  it  has  been  argued  that  he  may  be  entitled  to 
this  privilege  by  the  Law  of  Nations,  though  he  be  not 
expressly  designated  in  the  Act." 

The  learned  Chief  Justice  then  examined  the  autho- 
rities and  found  that  no  such  immunity  was  given  by  the 
Law  of  Nations. 

Act  of  Anne       46.   For  the  purpose  of  comment,  the  above  cases, 
deciara  ory   ^^  ^j^^    ^jj  ^^^j  ^-^j^  ^^^  question  of  diplomatic  immu- 

of  Common  •'  -a  i 

Law.  nities,  may  be  taken  together. 

All  the  best  opinion  seems  agreed  that  the  Act  of 
Anne  is  declaratory  of  the  Common  Law.  The  ex- 
planation given  by  Lord  Ellenborough  as  quoted  above 
is  that  the  Act  was  passed  in  order  to  soothe  the  out- 


AND    THE    COMMON    LAW  8 1 

raged  feelings  of  the  Czar.  Yet  the  point  should  not 
be  ignored  that  it  is  a  not  unusual  feature  of  English 
law  that  where  an  Act  of  Parliament  is  framed  ostensibly 
in  order  to  declare  what  is  the  Common  Law,  the  pass- 
ing of  the  Act  has  generally  been  preceded  by  some 
doubts  in  the  mind  of  the  judges,  or  by  some  conflict 
between  different  organs  of  the  State,  which  the  Act  is 
designed  to  settle.  It  is  necessary  to  refer  only  to  two 
such  famous  instances  as  the  3  and  4  Vict.  c.  9,  which 
settled  the  controversy  between  the  Courts  and  the 
House  of  Commons  arising  out  of  the  case  of  Stock- 
dale  V.  Hansard.^  Hansard,  on  being  sued  for  libel  in 
respect  of  statements  made  about  the  plaintiff  Stock- 
dale  contained  in  certain  reports,  set  up  as  defence  that 
these  were  published  by  order  of  the  House  of  Com- 
mons. The  Court  of  Queen's  Bench  gave  judgment  for 
the  plaintiff ;  to  which  the  Commons  retorted  by  com- 
mitting for  contempt  of  their  privilege  the  sheriff's 
officer  who  put  in  execution  upon  Hansard.  The  Act 
which  followed  made  an  order  of  the  House  a  good  de- 
fence to  such  publication,  if  accompanied  by  certificate 
and  affidavit.  But  the  important  point  is  that  it  required 
an  Act  of  Parliament  to  obtain  this  settlement.  A 
second  famous  example  is  provided  by  the  Territorial 
Waters  jurisdiction  Act,  which  states  in  its  preamble 
that  the  jurisdiction  of  the  Crown  "  extends,  and  has 
always  extended,  over  the  open  seas  adjacent  to  the 

*.  9  A.  and  E.   i. 


82  INTERNATIONAL    LAW 

coasts  of  the  United  Kingdom  and  of  all  other  parts  of 
Her  Majesty's  dominions  to  such  a  distance  as  is  neces- 
sary for  the  defence  and  security  of  such  dominions." 
Yet  it  must  be  remembered  that  the  passing  of  the  Act 
was  preceded  and  indeed  occasioned  by  the  acute  differ- 
ences of  opinion  among  the  judges  of  the  full  Court  who 
tried  the  case  of  R.  v.  Keyn 

But  on  the  other  hand,  in  view  of  the  repeated  state- 
ments of  our  Courts  in  the  cases  just  quoted,  and  of 
the  more  recent  case  of  Service  v.  Castaneda  (2  Coll. 
56),  in  which  Vice-Chancellor  Knight-Bruce  expressly 
affirmed  the  declaratory  nature  of  the  Act,  it  would  be 
unsafe  to  lay  down  so  broad  a  proposition  as  that  the 
law  relating  to  diplomatic  envoys  is  contained  in  the 
Act,  and  that  no  Court  could  look  behind  it.'  There  is 
authority  for  saying  that  where  the  Act  is  silent  the 
Common  Law  can  be  called  in  aid  and  this  view  is 
countenanced  by  the  decision  in  Macartney  v.  Gar  butt 
(1890,  24  Q.B.  368).  It  is  at  least  doubtful  whether  the 
Common    Law  gave   diplomatic  envoys  accredited  to 


'  C/.  also  Dc  Ilaber  v.  Queen  of  Portugal  (1851,  17  Q.B. 
[71),  in  which  the  Act  of  Anne  was  held  to  be  declaratory  of  the 
Common  Law  and  the  Law  of  Nations,  and  the  immunity  of  a 
foreign  sovereign  upheld  as  existing  at  Common  Law ;  and 
Magdalena  Steam  Navigation  Co.  v.  Martin  (1859,  2  E.  and  E.), 
in  which  quotations  from  text-writers  were  relied  upon  to 
prove  the  Law  of  Nations  in  regard  to  diplomatic  immunities. 

But  it  is  to  be  noted  that  this  line  of  cases  is  concerned  entirely 
with  the  immunities  of  foreign  sovereigns,  their  envoys,  and 
public  property,  a  principle  of  such  antiquity  and  general  accept- 
ance that  every  civilised  State  must  be  deemed  to  have  recog- 
nised and  acted  upon  it  in  its  practice. 


AND    THE    COMMON    LAW  83 

this  country  immunity  from  the  criminal  jurisdiction, 
the  principal  authority  for  such  a  statement  being  a 
single  passage  in  Blackstone  (i  Comm.  253). 

47.  It  should  be  noted,  further,  that  there  is  no  men-  TheDoctFine 
tion  in  these  judgments  of  a  word  frequently  found  in 

the  later  decisions — the  word  "  assent."  For  the  judges 
of  those  days  International  Law  could  rest  entirely  on 
an  a  priori  basis,  or  on  an  a  priori  basis  fortified  by  a 
modicum  of  practice.  It  would  seem  that  they  did  not 
require  a  uniformity  of  practice  even  among  a  substan- 
tial majority  of  States,  still  less  did  they  require  the 
assent  of  the  State  of  whose  law  the  international  rule 
under  discussion  was  said  to  form  part.  The  question 
of  assent  will  be  dealt  with  more  fully  when  we  proceed 
to  the  more  recent  cases. t 

48.  In  the  case  of   Wolff  v.  Oxkolm'  the  right   of  Wolff  y. 
confiscation  by  the  authorities  of  one  belligerent  of  the 
private  property  of  subjects  of  the  other  was  reviewed. 

Wolff,  a  British  subject,  and  Oxholm,  a  Dane,  were  in 
partnership  together.  A  debt  of  ;^2,86i  was  due  from 
Oxholm  to  Wolff.  On  the  outbreak  of  war  between 
Great  Britain  and  Denmark,  the  Danish  authorities 
ordered  the  payment  into  the  State  treasury  of  all 
monies  due  from  Danish  to  British  subjects.  In  accord- 
ance with  this  order  Oxholm  paid  in  the  ^2,861.    Upon 

t  p.  100. 

^   1817,  6  M.  and  S.  92. 


84  INTERNATIONAL   LAW 

an  action  instituted  in  the  English  Courts  by  Wolff  for 
the  payment  of  the  money,  the  question  turned  upon 
whether  or  no  the  payment  to  the  Danish  authorities 
was  a  good  discharge. 

Per  Lord  Ellenborough,  C.J.: — 
"  But  it  was  contended  that  this  ordinance  was  a 
proceeding  founded  upon  and  conformable  to  the  Law 
of  Nations,  and  that  as  the  defendant  paid  the  debt  to 
the  person  appointed  by  the  ordinance  to  receive  the 
confiscated  debts  he  has  a  good  discharge  as  to  the  debt 
itself  according  to  the  Law  of  Nations,  to  which  the 
municipal  courts  of  this  country,  as  well  as  of  all  others, 
ought  to  give  effect."  The  learned  Chief  Justice  then 
proceeded  to  examine  the  authority  of  the  text-writers  in 
favour  of  such  a  right  of  confiscation.  After  quotations 
fiom  the  leading  authorities,  including  Grotius  and 
Vattel,  he  came  to  the  conclusion  that  there  was  no  such 
right  given  by  any  rule  of  International  Law.  He  ac- 
cordingly concluded  his  judgment  in  these  words : — 

"  We  think  our  judgment  would  be  pregnant  of  mis- 
chief to  future  times  if  we  did  not  declare  that  in  our 
opinion  this  ordinance,  and  the  payment  to  the  commis- 
sioners appointed  under  it,  do  not  furnish  a  defence  to 
the  present  action ;  and  if  they  cannot  do  this  of  them- 
selves, neither  can  they  do  so  by  the  aid  of  the  proceed- 
ings in  the  Danish  Court.  The  parties  went  into  that 
Court  expecting  justice,  according  to  the  then  existing 
laws  of  that  country,  and  are  not  bound  by  the  quashing 
of  their  suit,  in  consequence  of  a  subsequent  ordinance, 


AND    THE    COMMON    LAW  85 

not  conformable  to  the  usage  of  nations  and  which, 
therefore,  they  could  not  expect,  nor  are  they  or  we 
bound  to  regard." 

This  judgment  raises  questions  of  much  difficulty.  It 
undoubtedly  proceeds  upon  the  principle  that  Inter- 
national Law  is  part  of  the  Common  Law,  and  will  be 
applied  in  a  proper  case.  Nor  would  it  be  easy  to  say 
here  that  the  Court  while  nominally  following  what  it 
conceived  to  be  the  true  doctrines  of  International  Law 
has  in  effect  followed  an  English  rule,  as  was  so  often 
the  case  in  Lord  Stowell's  judgments.  The  mind  of  the 
Court  was  directed  to  an  investigation  of  the  true  rule 
of  International  Law  on  a  certain  point,  and  finally  gave 
the  opinion  that  the  Danish  Government  had  been  in 
error  in  its  view  of  the  law.  We  are  therefore  bound  to 
admit  that  in  this  case  the  Court  did  act  upon  the  prin- 
ciple that  International  Law  is  part  of  the  law  of  the 
land.  But  wc  must  beware  of  a  confusion,  for  once  the 
judgment  is  given  and  complete  it  is  functus  officio  so 
far  as  the  Law  of  Nations  is  concerned.  It  cannot  add 
to  nor  detract  from  that  law.  It  is  a  precedent  and 
authoritative  decision  of  English  law,  and  should  a 
similar  point  come  before  the  Courts  on  a  future  occa- 
sion the  decision  in  this  case  will  be  authoritative  and  in 
point,  and  of  value  only  so  far  as  it  declares  Municipal 
Law  and  not  International. 

It  is  worthy  of  note  that  the  judgment  proceeded  upon 
two  distinct  grounds  (i)  that  an  Ordinance  command- 
ing such  a  confiscation  was  contrary  to   International' 


86  INTERNATIONAL    LAW 

Law,  and  (2)  that  our  Courts  could  take  no  notice  of 
the  penal  law  of  a  foreign  country/  Mr.  Dicey,  in  his 
"  Conflict  of  Laws,"  seems  to  put  the  judgment  on  this 
second  ground. "" 

F.  y.  Keyn,        49.  We  now  come  to  the  great  case  of  R.  v.  Keyn,^ 
**^**  in  which  much  is  to  be  found  concerning  the  true  rela- 

tion of  the  Law  of  Nations  to  English  Law.  The  real 
issue  was  this.  Has  an  English  Court  the  power  to 
give  effect  for  the  first  time  to  a  proposition  of  Inter- 
national Law,  such  proposition  having  been  previously 
embodied  neither  in  an  Act  of  Parliament  nor  in  a  judi- 
cial decision  of  a  competent  Court  ? 

The  prisoner  was  indicted  at  the  Central  Criminal 
Court  for  manslaughter.  He  was  a  foreigner  and  in 
command  of  a  foreign  ship,  passing  within  three  miles 
of  the  shore  of  England  on  a  voyage  to  a  foreign  port ; 
and  whilst  within  that  distance  his  ship  ran  into  a 
British  ship  and  sank  her,  whereby  a  passenger  on  board 
the  latter  ship  was  drowned.  The  facts  of  the  case  were 
such  as  to  amount  to  manslaughter  by  English  law.  The 
question  of  law  as  to  jurisdiction  went  up  to  the  Court 
for  Crown  Cases  Reserved.  A  majority  of  the  whole 
Court  held  that  the  Central  Criminal  Court  had  no  juris- 
diction to  try  the  prisoner. 

The  argument  directed  to  the  Court  was  to  the  effect 


'  At  p.  319. 

^  Conflict  of  Laws,  p.  461. 

^  1876,  2  Ex.  D.  63. 


AND    THE    COMMON    LAW  87 

that  the  Act  conferring  jurisdiction  upon  the  Central 
Criminal  Court  conferred  all  such  jurisdiction  by  virtue 
of  the  rule  of  International  Law  which  gives  a  State  a 
jurisdiction  over  all  its  territory  and  over  a  space  of  one 
marine  league  measured  outwards  from  low-water  mark. 
The  questions,  then,  for  the  Court  were  two,  namely : — 

{a)  Whether  such  a  rule  of  International  Law 
existed ; 

{b)  Whether  even  if  it  did,  it  would  be  sufficient  to 
give  the  Court  jurisdiction  without  an  Act  of  Parliament 
or  a  previous  decision  of  an  English  Court  to  support  it. 
The  ratio  decidendi  differed  in  one  case  from  another. 
Some  of  the  judges  held  that  in  their  opinion  there  was 
no  such  rule  of  International  Law,  others  that  even  if 
there  were,  no  Enghsh  Court  could  act  upon  it  without 
the  intervention  of  Parliament.  The  following  are  ex- 
tracts from  the  more  important  judgments: — 

50.   Per  Sir  R.  Phillimore  :  Judgment 

"  It  being  then  in  my  opinion  clear  that  the  jurisdic-pj^.jjj^^^^^ 
tion  to  try  the  prisoner  was  not  derived  from  the  Com- 
mon Law,  or  the  Statute  Law,  or  the  Law  of  the  High 
Court  of  Admiralty,  what  law  did  render  the  Enghsh 
Court  competent  for  this  purpose  ? 

"As  I  understand  the  contention  on  behalf  of  the 
Crown,  the  answer  is.  International  Law,  or  in  other 
words,  England  has  become  entided  to  include  within 
her  realm  a  marine  league  of  the  sea,  and  therefore  has 
jurisdiction  over  a  foreign  vessel  within  that  limit. 


88  INTERNATIONAL    LAW. 

"  It  is  indeed  a  most  grave  question  whether,  if  this 
statement  of  International  Law  were  correct,  neverthe- 
less an  Act  of  Parliament  would  not  be  required  to 
empower  the  Court  to  exercise  jurisdiction ;  but  waiv- 
ing this  consideration  for  the  present  it  becomes  im- 
portant in  this  view  of  the  question  to  consider  the 
sources  from  which  we  are  to  derive  this  doctrine  of 
International  Law." 

The  learned  President  then  examined  the  opinions 
of  the  text-writers  and  came  to  the  conclusion  that  these 
gave  no  ground  for  the  proposition  that  a  State  had  a 
jurisdiction  over  the  marine  league  as  distinct  from  the 
right  to  exercise  precautionary  and  protective  measures 
over  its  adjacent  waters.  It  is  noteworthy  that  he  ex- 
pressed no  opinion  of  his  own  as  to  the  necessity  for  an 
Act  of  Parliament  conferring  such  jurisdiction  on  the 
Court,  even  if  such  jurisdiction  had  been  found  to  have 
been  well  established  in  International  Law.  There  are 
indications,  both  from  the  language  he  uses  in  the  above 
passage  and  from  his  remarks  in  the  Parlement  Beige 
that  he  incHned  to  the  view  that  the  rights  conferred  or 
the  duties  imposed  by  International  Law  could  not  effec- 
tually bind  the  English  Courts  without  the  intervention 
of  the  legislature. 

Japisdiction        51.   Lindley,  J.,  placed  the  jurisdiction  of  the  Court, 

given  by       •£  existed,  upon  the  two  Acts  of  28  Hen.  VIII,  c. 

International 
Law.  i5j  ^rid  39  Geo.  Ill,  c.  37.    ''  The  jurisdiction,"  he  said, 

"  throughout  is  assumed  to  have  been  as  extensive  as  it 


AND    THE    COMMON    LAW  89 

could  be.  The  question  therefore  is,  how  extensive 
could  it  be  ?  This  brings  us  at  once  to  the  considera- 
tion of  the  limits  of  the  legislative  power  of  this  country 
or  of  the  jurisdiction  of  its  courts,  and  there  being  no 
other  limit  than  that  set  by  International  Law,  these 
limits  must  be  sought  for  amongst  the  recognised  autho- 
rities on  that  branch  of  jurisprudence." 

After  a  full  examination  of  these  authorities  the 
learned  judge  came  to  the  conclusion  that  by  Inter- 
national Law  a  plenary  as  opposed  to  a  restricted  juris- 
diction for  defensive  purposes  existed,  and  continued 
thus : — 

"  For  these  reasons  I  have  arrived  at  the  conclusion 
that  speaking  generally,  and  subject  to  such  exception,  if 
any,  as  can  be  established,  the  general  language  of  the 
statutes  28  Henry  VIII,  c.  15,  and  39  George  III, 
c.  I'],  may  properly  be  construed  as  having  made 
punishable  by  English  law  all  offences  committed  within 
the  conventional  limit  of  three  miles  from  our  shores." 

52.   Denman,  J.,  was  in  favour  of  upholding  the  con-  Denman  and 
viction  on  the  twofold  ground  that  the  manslaughter  was  ®^°'*'  ''• 
committed  on  board  a  British  ship,  and  therefore  cog- 
nisable by  the  British  Courts,  and  also  because  the  Cen- 
tral Criminal  Court  had  jurisdiction  over   the    marine 
league. 

Grove,  J.,  was  for  affirming  the  conviction  on  the 
ground  that  the  leading  authorities  on  International  Law 


90  INTERNATIONAL    LAW 

were  agreed  as  to  the  right  of  the  State  to  the  three- 
mile  jurisdiction. 

Brett,  L.J  53.  Brett,  L.J.,  proceeded  upon  the  same  hnes  as 
Lindley,  J.  He  took  the  two  statutes  as  his  starting 
point,  and  then  proceeded  to  examine  the  extent  of  the 
jurisdiction  which  International  Law  allowed  them  to 
confer.  He  agreed  that  the  consent  of  States  is  essen- 
tial to  the  establishment  of  a  rule  of  International  Law ; 
but  unhke  Cockburn,  C.J.,  he  regarded  the  statements 
of  text-writers  as  evidence  of  such  consent.  Indeed,  in 
one  passage  he  well  puts  the  distinction  between  the 
Naturalist  and  the  Positivist  Schools : — 

"  On  the  one  side,  it  is  said,  that  among  heads  of 
evidence  of  such  consent  the  writings  of  jurists  of  dif- 
ferent nations  are  to  be  received,  and  that  a  common 
consent  of  them  all,  or  of  substantially  all  of  them,  to  a 
reasonable  proposition,  may  be  accepted  as  proof  of  the 
common  consent  of  nations,  though  the  proposition  has 
not  yet  been  brought  for  the  purposes  of  action  before 
the  governments  of  nations.  On  the  other  side  it  is 
said  that  the  propositions  of  such  writers  are  theories, 
not  binding  unless  and  until  they  have  been  adopted  by 
governments,  and  that  such  adoption  must  be  shown  by 
some  express  declarations  of  governments,  or  by  some 
acts  of  governments.  If  the  latter  be  true,  it  is  obvious 
that  there  can  be  no  law  on  any  particular  point  until 
it  has  arisen  in  fact  for  the  treatment  of  governments." 


^  Afterwards  Lord  Esher,  M.R. 


AND    THE    COMMON    LAW  9 1 

On  investigation  the  learned  Lord  Justice  found  that 
the  statements  of  text-writers  afforded  complete  evidence 
of  such  consent,  and  finally  affirmed  the  conviction. 

54.  Lord  Coleridge,  CJ.,  was  in  favour  of  affirming  Lord  Coie- 
the  conviction  on  the  main  ground  that  the  jurisdiction  "  ^®' 
existed  in  English  Law.  He  says  some  instructive 
things  upon  the  nature  and  basis  of  International  Law. 
For  example :— "  The  Law  of  Nations  is  that  collection 
of  usages  which  civilised  States  have  agreed  to  observe 
in  their  deaHngs  with  one  another.  What  these  usages 
are,  whether  a  particular  one  has  or  has  not  been  agreed 
to,  must  be  matter  of  evidence.  Treaties  and  Acts  of 
State  are  but  evidence  of  the  agreement  of  nations,  and 
do  not  in  this  country  at  least,  per  se,  bind  the  tribunals. 
Neither  certamly  does  a  consensus  of  jurists,  but  it  is 
evidence  of  the  agreement  of  nations  on  international 
points  ;  and  on  such  points,  when  they  arise,  the  English 
Courts  give  effect,  as  part  of  English  law,  to  such  agree- 
ment." 

It  is  difficult  to  understand  the  propositions  set  out 
above.  If  even  the  assent  of  nations  as  opposed  to  the 
theoretical  speculations  of  text-writers  are  not  binding 
upon  Enghsh  Courts,  it  is  hard  to  see  how  the  Courts 
give  effect  "  to  such  assent  when  such  points  arise  for 
decision."  The  learned  Judge,  it  seems,  takes  the  more 
serious  view  of  the  text-writers  as  evidencing  what  is 
International  Law. 


92  INTERNATIONAL    LAW 

Sir  A.  Cock-  55.  Sir  A.  Cockburn,  C.J.,  was  not  inclined  to  attach 
"'"*'  *  '  much  importance  to  the  opinion  of  the  text  writers, 
especially  in  view  of  the  great  divergence  among  them 
as  to  the  basis  of  the  three-mile  jurisdiction,  and  as  to 
its  limitations.  He  clearly  takes  the  view  that  writers  on 
International  Law  are  more  often  expressing  a  pious 
aspiration  than  stating  what  is  in  fact  the  practice  of 
States.  "  For  even  if,"  he  says,  "  entire  unanimity  had 
existed  in  respect  of  the  important  particulars  to  which 
I  have  referred  in  place  of  so  much  discrepancy  of 
opinion,  the  question  would  still  remain.  How  far  the  law 
as  stated  by  the  publicists  had  received  the  assent  of 
the  civilised  nations  of  the  world.  For  writers  on  Inter- 
national Law,  however  valuable  their  labour  may  be  in 
elucidating  and  ascertaining  the  principles  and  rules  of 
law,  cannot  make  the  law.  To  be  binding  the  law  must 
have  received  the  assent  of  the  nations  who  are  to  be 
bound  by  it.  The  assent  may  be  express,  as  by  treaty 
or  the  acknowledged  concurrence  of  governments,  or 
may  be  implied  from  established  usage.  ...  In  the 
absence  of  proof  of  assent,  as  derived  from  one  or  other 
of  these  sources,  no  unanimity  on  the  part  of  theoretical 
writers  would  warrant  the  judicial  application  of  the 
law  on  the  sole  authority  of  their  views  or  statements. 
Nor  in  my  opinion  would  the  clearest  proof  of  unanimous 
assent  on  the  part  of  other  nations  be  sufficient  to  autho- 
rise the  tribunals  of  this  country  to  apply  without  Act  of 
Parliament  what  would  practically  amount  to  a  new  law. 
In  so  doing  we  should  be  unjustifiably  usurping  the  pro- 


AND    THE    COMMON    LAW  93 

vince  of  the  legislature.  The  assent  of  nations  is  doubt- 
less sufficient  to  give  the  power  of  parliamentary  legis- 
lation in  a  matter  otherwise  within  the  sphere  of  Inter- 
national Law ;  but  it  would  be  powerless  to  confer  with- 
out such  legislation  or  jurisdiction  beyond  and  unknown 
to  the  law,  such  as  that  now  insisted  on.  ...  It  is  said 
that  we  are  to  take  the  statements  of  the  publicists  as 
conclusive  proof  of  the  assent  in  question.  ...  I  demur 
altogether  to  this  position.  I  entertain  a  profound  re- 
spect for  the  opinion  of  jurists  when  deahng  with  matters 
of  judicial  principle  and  opinion,  but  we  are  here  dealing 
with  a  question  not  of  opinion,  but  of  fact,  and  I  must 
assert  my  entire  liberty  to  examine  the  evidence  and 
see  upon  what  foundation  these  statements  are  based." 

The  effect  of  this  judgment  would  seem  to  be  that  in 
the  learned  judge's  opinion,  the  assent  of  other  nations 
could  have  no  effect  upon  the  Courts  of  this  land  in  the 
absence  of  the  assent  of  this  country  by  treaty,  by  prac- 
tice, or  by  a  previous  judicial  decision.  The  only  way 
in  which  a  rule  of  practice  adopted  by  other  nations  and 
not  shared  by  us  could  be  made  binding  upon  the  Courts 
is  by  Act  of  Parliament. 

56.  This  is  the  modern  position,  and  is  practically  the  The  Modem 
same  as  that  advanced  by  Lord  Alverstone,  C.J.,  in  the^j^^^'^^^^^^^ 
West  Rand  case,  which  will   be   discussed   later.      It  this  Country 
clearly  rests  upon  a  different  conception  of  the  basis  of  i"  P^ac^ce 

•^  ^  -    ,  .  .18  required. 

International  Law.    Where  the  basis  of  this  was  mainly 
moral  and  a  priori  speculation  founded  upon  what  were 


94  INTERNATIONAL    LAW 

held  to  be  the  rules  of  absolute  right,  it  was  obvious  that 
International  Law  must  be  part  of  the  Common  Law, 
since  the  Common  Law  was  held  to  rest  upon  such  rules 
of  morality  and  right.  But  when  International  Law 
came  to  be  conceived  as  the  sum  of  practice,  and  its 
reasoning  to  be  a  posteriori^  then  it  became  necessary 
for  English  judges  to  introduce  the  element  of  assent. 
And  for  them  the  assent'  required  is  of  the  strictest  sort. 
1  hey  are  not,  it  seems,  prepared  to  admit  as  a  settled 
rule  of  International  Law  that  which  has  been  acted 
upon  by  a  substantial  majority  of  States ;  that  majority 
must  include  this  country  if  the  rule  is  to  be  admitted  as 
binding  her  Courts. 

Three  of  the  other  judges  took  a  laxer  view.  Cole- 
ridge, C.J.,  Brett,  L.J.,  and  Lindley,  J.,  all  names  of  the 
highest  authority,  were  mclined  to  give  much  more  force 
to  International  Law,  as  evidenced  by  the  agreement  of 
a  substantial  majority  of  nations,  or  even  by  the  autho- 
rity of  text-writers,  in  its  relation  to  the  law  of  England. 
But  it  is  not  clear  from  their  judgments  whether  they 
regarded  the  writings  of  jurists  as  evidence  of  practice, 
or  as  rules  of  International  Law  arrived  at  from  an  ideal 
basis.  These  judgments,  therefore,  are  of  no  great 
assistance.    The  same  applies  to  the  case  as  a  whole  ;  for 


'  "Assent"  as  used  in  this  and  all  similar  contexts  means 
that  kind  of  assent  by  practice  or  course  of  action  which  we 
call  customary  as  opposed  to  conventional  International  Law. 
It  is  true,  of  course,  that  assent  is  evidenced  by  a  treaty.  But 
conventional  assent  is  practically  never  binding  on  our  Courts 
without  Act  of  Parliament. 


AND    THE    COMMON    LAW  95 

the  conviction  was  quashed  by  a  narrow  majority,  and 
never  twice  upon  the  same  ground.  Through  such  a 
forest  of  divergent  reasons  it  is  neither  easy,  nor,  indeed, 
profitable,  to  find  a  path.  The  judgment  of  Sir  A.  Cock- 
burn  is  the  only  clear  guide,  and  we  shall  see  how  his 
view  has  been  adopted  in  more  recent  times. 

The  case  of  the  Parlement  Beige  on  appeal  (1879 
P.D.  197)  is  a  good  illustration  of  the  manner  in  which 
the  Courts  treat  the  doctrine  of  assent.  The  Court  de- 
cided for  the  privilege  of  the  vessel  not  merely  on  con- 
siderations of  International  Law,  but  by  reference  to  pre- 
vious EngHsh  and  American  decisions,  notably  The 
Exchange,  the  Duke  of  Brunswick  v.  The  King  of 
Hanover,  the  Prins  Frederick,  etc.  The  headnote  gives 
the  effect  of  the  decision  clearly  and  well.  It  runs : — 
"  As  a  consequence  of  the  absolute  independence  of 
every  sovereign  authority  and  of  the  international  comity 
which  induces  every  sovereign  State  to  respect  the  in- 
dependence of  every  other,  each  State  declines  to 
exercise  by  means  of  its  Courts  any  of  its  territorial  juris- 
diction over  the  person  of  any  sovereign  or  ambassador, 
etc.,  etc.  .   .  ." 

Thus  a  rule  of  International  Law  was  rendered  effec- 
tive in  our  Courts  in  a  case  where  that  rule  had  received 
the  assent  of  this  country. 


57.   The  case  of  the  West  Rand  Central  Gold  Min-  West  Ramd, 

Y.  Th 
1906. 


ing  Company  v.  The  King'  was    a   petition    of   right  ^'     ®    "* 


1905,  2  K.B.,  391. 


96  INTERNATIONAL    LAW 

which  "  alleged  that,  before  the  outbreak  of  war  between 
the  late  S.  African  Republic  and  Great  Britain,  gold, 
the  produce  of  a  mine  in  the  Republic  owned  by  the  sup- 
pliants had  been  taken  from  the  suppliants  by  officials 
acting  on  behalf  of  the  Government  of  the  Republic ; 
that  the  Government  of  the  Republic  by  the  laws  of  the 
Republic  was  liable  to  return  the  gold  or  its  value  to 
the  suppliants ;  and  that  by  reason  of  the  conquest  and 
annexation  of  the  territories  of  the  Republic  by  her  late 
Majesty  the  obligation  of  the  Government  of  the  Re- 
public towards  the  suppliants  in  respect  of  the  gold  was 
now  binding  upon  his  Majesty  the  King." 

For  the  suppliants  there  appeared  Lord  Robert  Cecil, 
K.C.,  J.  A.  Hamilton,  K.C.,'  and  Theobald  Matthew 
and  A.  M.  Talbot  with  them.  They  argued  that  "  the 
case  for  the  suppliants  may  be  put  in  the  form  of  three 
propositions,  the  first  of  which  is  that  by  International 
Law,  where  one  civilised  State  after  conquest  annexes 
another  civilised  State,  the  conquering  State,  in  the  ab- 
sence of  stipulations  to  the  contrary,  takes  over  and  be- 
comes bound  by  all  the  contractual  obligations  of  the 
conquered  State,  except  liabilities  incurred  for  the  pur- 
pose of  or  in  the  course  of  the  particular  war.  The 
writings  of  jurists  on  International  Law  and  stipulations 
in  treaties  are  evidence  of  what  is  International  Law.  .  ." 

"  Secondly  International  Law  is  part  of  the  law  of 
England."     (The  learned  Counsel  then  cited  the  cases 

^  Now  Lord  Sumner,  a  Lord  of  Appeal  in  Ordinary. 


AND    THE    COMMON    LAW  97 

discussed  in  other  parts  of  this  essay.)  ...  "  All  these 
cases  have  been  dealt  with  by  the  English  Courts  on  the 
footing  that  the  principles  of  International  Law  relating 
to  them  form  part  of  the  Common  Law  of  England." 

58.   It  is  at  this  stage  perhaps  necessary  to  point  out  QueBtion 
that  it  is  doubtful  whether  any  issue  of   International  *'®*"^°"* 

'  of  Constito- 

Law  was  under  discussion  at  all,  and  not  rather  one  tionai  and 
which  touched  the  Constitutional  Law  of  this  country,  "«*  °"n*e'- 
and  no  more.'  The  existence  of  the  Boer  Republic  be-^a^""* 
came  terminated  by  subjugation.  The  life  of  the  State 
became  extinct.  The  arrangement  made  at  the  end  of 
the  war  was  rightly  enough  not  termed  a  treaty,  because 
the  term  treaty  implies  the  contractual  capacity,  and  a 
fortiori,  the  existence,  of  at  least  two  sovereign  States. 
In  this  instance  there  was  only  one.  By  the  fact  of  sub- 
jugation the  Boer  territory  and  all  persons  upon  it 
passed  into  the  impcrium  of  the  conquering  State.  It 
would  therefore  seem  that  any  rights  which  such  persons 
might  have  been  able  to  exercise  were  rights  conferred 
upon  them  in  virtue  of  their  new  citizenship  and  allegi- 
ance, if  at  all,  that  is  to  say,  by  the  Constitutional  Law 
of  England,  but  certainly  not  by  International  Law.  So 
that  it  seems  hard  to  understand  why  such  considerations 
were  put  forward  and  rehed  upon  in  the  argument  for 
the  suppHants. 

'  This  was  certainly  emphasised  by  Counsel  for  the  Crown  in 
arguing  the  demurrer.  They  relied  on  Nabob  of  the  Carnatic 
V.  E.  India  Company  (1791,  i  Ves.  Jun.  371)  and  other  Indian 
cases.     Cf.  also  Cook  v.  Sprif^s^  (1899  A.C.  572). 

H 


98 


INTERNATIONAL    LAW 


Jadgment 
of  Lord 
Alverstone. 


59.  However,  the  references  to  the  position  of  Inter- 
national Law  in  the  Enghsh  Courts  in  the  judgment  de- 
livered by  Lord  Alverstone  are  of  great  value.  He  says 
(p.  402):— 

"  The  views  expressed  by  learned  writers  on  Inter- 
national Law  have  done  in  the  past  and  will  do  in  the 
future  valuable  service  in  helping  to  create  the  opinion 
by  which  the  range  of  the  consensus  of  civiHsed  nations 
is  enlarged.  But  in  many  instances  their  pronounce- 
ments must  be  regarded  rather  as  the  embodiment  of 
their  views  as  to  what  ought  to  be,  from  an  ethical  stand- 
point, the  conduct  of  nations  inter  se  than  the  enuncia- 
tion of  a  rule  or  practice  so  universally  acted  on  or  as- 
sented to  as  to  be  fairly  termed,  even  in  the  qualified 
sense  in  which  that  word  can  be  understood  in  reference 
to  the  relations  between  independent  political  commu- 
nities, '  Law.'  .  .  .  The  second  proposition  urged  by 
Lord  Robert  Cecil  that  International  Law  forms  part  of 
the  Law  of  England  needs  a  word  of  explanation  and 
comment.  It  is  quite  true  that  whatever  has  received  the 
common  consent  of  civilised  nations  must  have  received 
the  assent  of  our  country,  and  that  to  which  we  have 
assented  along  with  other  nations  in  general  may  pro- 
perly be  called  International  Law,  and  as  such  will  be 
acknowledged  and  applied  by  our  municipal  tribunals 
when  legitimate  occasion  arises  for  these  tribunals  to  de- 
cide questions  to  which  doctrines  of  International  Law 
may  be  relevant.  But  any  doctrine  so  invoked  must  be 
one  really  accepted  as  binding  between  nations,  and 


AND    THE    COMMON    LAW  99 

the  International  Law  sought  to  be  apphed  must  like 
anything  else  be  proved  by  satisfactory  evidence  which 
must  show  either  that  the  particular  proposition  put  for- 
ward has  been  recognised  and  acted  upon  by  our  own 
country  or  that  it  is  of  such  a  nature  and  has  been  so 
widely  and  generally  accepted  that  it  can  hardly  be  sup- 
posed that  any  civilised  State  would  repudiate  it.  The 
mere  opinions  of  jurists,  however  eminent  or  learned, 
that  it  ought  to  be  so  recognised  are  not  in  themselves 
sufficient.  They  must  have  received  the  express  sanc- 
tion of  international  agreement  or  gradually  have  grown 
to  be  part  of  International  Law  by  their  frequent  prac- 
tical recognition  in  deahngs  between  various  nations.  .  . 
In  our  judgment  the  second  proposition  for  which  Lord 
R.  Cecil  contended  in  his  argument  before  us  ought  to 
be  treated  as  correct  only  if  the  term  International  Law 
is  understood  in  the  sense  and  subject  to  the  limitations 
of  appHcation  which  we  have  explained.  The  authori- 
ties which  he  cited  in  support  of  the  proposition  are  en- 
tirely in  accord  with  and  indeed  well  illustrate  our  judg- 
ment upon  this  branch  of  the  argument  advanced  upon 
behalf  of  the  suppHants.  For  instance,  Barbuits  Case, 
Triquei  v.  Bath  and  H eaihfleld  v.  Chilton  are  cases 
in  which  the  Courts  of  Law  have  recognised  and  have 
given  effect  to  the  privilege  of  ambassadors  as  estab- 
lished by  International  Law.  But  the  expressions  used 
by  Lord  Mansfield  when  dealing  with  the  particular  and 
recognised  rule  of  International  Law  on  this  subject,  that 
the  Law  of  Nations  forms  part  of  the  Law  of  England, 


lOO  INTERNATIONAL    LAW 

ought  not  to  be  construed  so  as  to  include  as  part  of 
the  Law  of  England  opinions  of  text-writers  upon  a 
question  as  to  which  there  is  no  evidence  that  Great 
Britain  has  ever  assented,  and  a  fortiori  if  they  are  con- 
trary to  the  principles  of  her  laws  as  declared  by  her 
Courts.  The  cases  of  Wolff  v.  Oxholm  and  R.  v. 
Keyn  are  only  illustrations  of  the  same  rule,  namely, 
that  questions  of  International  Law  may  arise  and  may 
have  to  be  considered  in  connexion  with  the  administra- 
tion of  Municipal  Law." 


Practice. 


fhe  moderii      gQ.  The  learned  Judge  was  clearly  of  opinion  that  the 

-.«.-!„         views  of  text-writers  must  be  used  with  caution  and  are 
merely 

records  in  no  way  evidence  of  the  practice  of  States.  It  is 
doubtful  whether  this  view  is,  in  the  light  of  modern 
conceptions  of  International  Law,  a  sound  one.  The 
Positivistic  has  almost  completely  taken  the  place  of 
the  Naturalistic  school.  The  text-books  on  International 
Law  of  the  present  day  contain  no  speculations  as  to 
what  the  law  ought  to  be  ;  they  merely  record  and  regis- 
ter the  law  as  it  is ;  they  mirror  the  practice  of  States. 
The  conclusion,  therefore,  cannot  be  resisted  that  when 
our  judges  more  correctly  appreciate  the  radical  change 
that  has  taken  place  m  the  conception  of  the  basis  and 
function  of  International  Law,  they  will  be  inclined  to 
accord  to  the  writings  of  jurists  a  higher  evidentiary 
value  than  they  have  hitherto  done. 

Lord  Alverstone's  view  thus  differs  only  slightly  from 
that  of  Sir  Alexander  Cockburn  in  R.  v.  Keyn.     We 


AND    THE    COMRiON    LAW  '  •   •    ,•'•■'■■■   YOI 

saw  that  the  latter  required  an  Act  of  ParUament  in 
order  to  make  a  proposition  of  International  Law  bind- 
ing upon  the  Courts,  in  a  case  where  the  general  con- 
sent of  nations  alone  was  rehed  on,  a  consent  in  which 
this  country  had  shared  neither  by  statutory  nor  judicial 
expression  nor  by  practice. 

61.  The  effect  of  the  judgment  now  under  considera-  strict  Proof 
tion  is  that  in  a  proper  case  the  Courts  will  elicit  and  pg-Qj^g^ 
apply  a  rule  of  International  Law,  such  rule  resting  upon 
the  practice  of  States  including  our  own,  or  of  such  an 
obvious  reasonableness  in  themselves  that  although 
there  is  no  strict  evidence  of  our  assent  such  assent  can 
be  taken  for  granted.  Thus  it  may  be  conjectured  that 
the  Courts  would  act  benignantly  in  all  cases  of  diplo- 
matic privilege  and  might  apply  a  practice  which  this 
country  has  not  actually  shared  in  forming,  on  the 
ground  that  the  rules  as  to  diplomatic  immunities  have 
been  "  so  widely  and  generally  accepted  that  it  can 
hardly  be  supposed  that  any  civilised  State  could  repu- 
diate them."  Shortly  put,  then,  the  above  propositions 
amount  to  this,  that  the  Courts  will  give  effect  to  clearly 
ascertained  rules  of  International  Law  which  rest  upon 
the  assent  of  a  substantial  majority  of  States,  and  that 
in  arriving  at  any  conclusion  as  to  what  is  or  is  not  a 
rule  of  International  Law,  reference  to  text-writers  is  of 
value  onlv  in  so  far  as  they  afford  evidence  of  practice. 
In  order  to  establish  the  assent  of  this  country  in  any 
given  case,  it  is  submitted  that  the  strictest  proof  would 


I02  INTERNATIONAL    LAW 

be  required,  and  that  nothing  short  of  a  certificate  from 
the  Foreign  Office'  would  be  sufficient.  It  must  again 
be  emphasised  that  the  assent  meant  here  is  the  assent  in 
a  course  of  practice,  and  not  assent  by  treaty — in  other 
words,  custom  as  opposed  to  conventional  International 
Law. 

That  kind  of  assent  which  is  given  by  treaty  requires 
in  most  cases  an  Act  of  Parliament  before  it  can  effec- 
tually bind  the  Courts. 

Limitations        g2.   It  seems,  then,  that  the  proposition,  so  frequently 
internatioaai  Stated  in  the  older  cases  and  so  loosely  ventilated  in  the 
Law  is  part    text-books,  that  "  International  Law  is  in  its  full  extenc 
of  Law  of      p^^^  ^£  ^YiQ  Common  Law  of  England"  must  be  received 
with  limitations  and  with  great  modification.    Although 
some  of  the  judges  in  R.  v.  Keyn,  notably  Lord  Jus- 
tice Brett  and  Mr.  Justice  Lindley,  were  inclined  to  re- 
ceive the  International  Law  of  the  text-writer  as  part  of 
the  Law  of  England,  we  are  bound  to  pay  the  greatest 
attention  to  the  most  weighty  and  luminous  judgment  of 
Sir  A.  Cockburn,  and  to  the  remarks  of  Lord  Alverstone 
in  the  West  Rand  case,  whose  authority  should  be  re- 
garded as  relevant  and  immediate,  in  view  of  its  recent 
date  and  of  the  strength  of  the  Court.    Upon  the  whole 
we  are  justified  in  assuming  that  in  the  future  the  Courts 


& 


*  Or  an  even  stricter  proof  might  demand  the  attendance  on 
subpoena  of  a  responsible  olBcial  from  the  Foreign  Office  to 
speak  to  matters  within  his  own  knowledge.  But  certificate 
might  be  sufficient  {Mighell  v.  Sultan  of  Johore,   1894,  i  Q.B.). 


AND    THE    COMMON    LAW  IO3 

will  be  guided  rather  by  the  view  more  recently  enun- 
ciated than  by  that  of  the  earlier  decisions ;  and  that  the 
proposition  that  International  Law  is  in  its  full  extent 
part  of  the  Common  Law  of  England  is  true  only  when 
subject  to  the  limits  and  modifications  laid  down  in  the 
West  Rand  Case. 

63.  One  last  question  remains.    Even  though  it  may  Mode  of 
be  true  to  say,  with  the  limitations  above-mentioned,  that  j^^^^j^..  ^^i 
International  Law  is  part  of  the  Law  of  England,  is  not  Law. 
such  a  statement  susceptible  of  still  further  scrutiny  ? 

Let  us  see  how  Lord  Alverstone's  rule  works  in  prac- 
tice. We  may  assume  that  counsel  argues  to  the  Courl 
(in  a  case  where  a  rule  of  International  Law  is  expressed 
neither  in  the  Statutes  nor  m  the  Common  Law  of  Eng- 
land) that  a  certain  proposition  is  a  rule  of  International 
Law.  The  International  Law  is  then  proved  to  the 
satisfaction  of  the  Court  by  historical  evidence  as  op- 
posed to  the  speculations  of  jurists.  The  assent  of  this 
country  is  proved  by  certificate  from  the  Foreign  Office.' 
Ii  is  then  embodied  into  the  judgment  of  the  Court. 

Can  we  properly  say  that  under  these  circumstances 
and  with  these  limitations  International  Law  is  part  of  the 
law  of  the  land?  Now  there  can  be  no  question  that 
after  a  proposition  of  International  Law  has  been  so  em- 
bodied in  a  judgment  of  the  Court,  a  subsequent  Court 
which  is  bound  by  the  decision  of  its  predecessor  of  simi- 


'  See  above,  p.    loi. 


Court 


104  INTERNATIONAL    LAW 

lar  degree  will  follow  that  judgment,  because  it  is  the 
judgment  of  an  English  Court  competent  to  bind  its  suc- 
cessor by  precedents  of  EngHsh  Law,  and  not  because 
or  in  so  far  as  it  enunciates  rules  of  International  Law. 

But  what  is  the  true  position  of  that  rule  of  the  Law 
of  Nations  before  it  is  so  adopted  into  and  made  part  of 
English  Law? 

International  54,  The  lirst  fact  we  have  to  note  is  that  it  has  to  be 
QneBtionof  P'^oved  to  the  satisfaction  of  the  Court.  It  is,  in  other 
fact  for  the  words,  a  question  of  fact,  like  foreign  law,  for  example  ; 
the  Court  takes  no  judicial  cognisance  of  it.  Professor 
Salmond'  draws  the  distinction  thus : — 

"  The  whole  body  of  legal  rules  is  divisible  into  two 
parts  which  may  be  conveniently  distinguished  as 
General  Law  and  Special  Law.  The  former  includes 
those  legal  rules  of  which  the  Courts  will  take  judicial 
notice,  and  which  will  therefore  be  applied  as  a  matter  of 
course  in  any  case  in  which  the  appropriate  subject- 
matter  is  present.  Special  Law,  on  the  other  hand,  con- 
sists of  those  rules  which,  although  they  are  true  rules  of 
Law,  the  Courts  will  not  recognise  and  apply  as  a  matter 
of  course,  but  which  must  be  specially  proved  and 
brought  to  the  notice  of  the  Courts  by  the  parties  in- 
terested in  their  recognition.  .  .  The  test  of  the  dis- 
tinction is  judicial  notice.  By  this  is  meant  the  know- 
ledge which  any  Court  ex  officio  possesses  and  acts  on, 

'  Jurisprudence  (1907),  p.  27. 


AND    THE    COMMON    LAW  I05 

as  contrasted  with  the  knowledge  which  a  Court  is  bound 
to  acquire  through  the  appointed  channel  of  evidence 
formally  produced  by  the  parties." 

It  would  follow  from  this  that  nothing  which  requires 
proof  in  a  Court  can  be  in  itself  law  to  be  applied  un- 
less and  until  such  proof  has  been  satisfactorily  adduced. 
The  examples  of  bodies  of  rules  which  the  learned  writer 
gives  are  Foreign  Law,  the  Law  Merchant  (though  since 
Lord  Mansfield's  day  it  is  settled  that  this  is  part  of 
the  Common  Law),  Local  Custom,  etc.  In  all  these 
cases  the  rules  or  the  law  m  question  have  to  be  proved 
as  a  fact.  But  in  all  these  instances  the  element  of  doubt 
and  dispute  as  to  the  existence  of  the  rules  is  exceedingly 
small,  if  it  can  be  said  that  there  is  any.  But  the  case 
is  different  with  the  propositions  of  International  Law. 
A  glance  at  even  the  most  modern  of  text-books  or  at  any 
judgment  in  which  a  proposition  claiming  to  constitute 
a  rule  of  the  Law  of  Nations  is  examined  is  sufficient  to 
show  that  here  there  is  far  less  certainty  and  precision. 
If  the  examples  of  special  rules  given  by  Professor  Sal- 
mond  are  not  law  and  do  not  become  binding  upon  the 
Court  until  ascertained  and  proved  to  its  satisfaction, 
then  a  fortiori  must  this  apply  to  the  case  of  Interna- 
tional Law,  whose  rules  are  often  subject  to  the  most 
acute  discussion. 

65.   The  true  view  would  seem  to  be  that  so  far  from  laternatienai 
International  Law  being  in  any  sense  whatever  a  part  ^**  * 
of  the  Common  Law  of  England  it  is  merely  a  source  of  Engiidi*Law. 


I06  INTERNATIONAL    LAW 

law,  and  that  this  fundamental  confusion  between  cause 
and  effect  has  vitiated  the  whole  controversy.  It  is  a 
source  of  law  classified  by  Professor  Salmond  under  the 
head  of  "  material  source" ;  and  his  meaning  is  well 
shown  in  the  following  passage  : — ' 

"  In  respect  of  its  material  origin  a  rule  of  law  is  often 
of  long  descent.  The  immediate  source  of  it  may  be  the 
decision  of  an  EngHsh  Court  of  Justice.  But  that  Court 
may  have  drawn  the  matter  of  its  decision  from  the  writ- 
ings of  some  lawyer,  let  us  say,  the  celebrated  French- 
man Pothier ;  and  Pothier  in  his  turn  may  have  taken  it 
fiom  the  compilation  of  the  Emperor  Justinian,  who  may 
have  obtained  it  from  the  Praetorian  edict.  .  .  But  there 
is  a  difference  between  them,  for  the  precedent  is  the 
legal  source  of  the  rule  and  the  others  are  merely  its 
historical  sources." 

If  we  eliminate  the  idea  that  International  Laws  are 
derived  by  a  similar  legal  causation  we  shall  see  that  the 
comparison  is  apt.  International  Law  is  a  material 
source  of  Common  Law  in  the  sense  that  rules  derived 
thence  find  their  way  into  it,  just  as  the  rules  of  local 
custom  find  their  way  into  it  and  become  after  their 
adoption  a  living  part  of  it. 

We  may  then  conclude  that  the  proposition  that  In- 


^  Jurisprudence,  p.   ii8. 


AND    THE    COMMON    LAW  IO7 

ternational  Law  is  part  of  the  Common  Law  is  as  inac- 
curate as  is  the  proposition  that  it  supersedes  Acts  of 
ParHament,  and  that  all  treaties  form  of  themselves  part 
of  the  law  of  the  land  to  be  recognised  and  acted  upon 
by  English  Courts. 

66.   Before  beginning  the  discussion  of  the  position  c°^e"®n 
occupied  by  International  Law  in  the  United  States  of  g    ^^j^  ^^^ 
America,   a  word   should  be    said    showing    how    the  American 
American  heritage  of  the  English  Common  Law  has  in-*'®* 
fluenced  the  question. 

We  have  already  seen  that  the  doctrine  that  Inter- 
national Law  is  part  of  the  Common  Law  may  be  traced 
back  to  the  eighteenth  century,  and  even  earlier.  At 
that  time  the  view  prevailed  that  International  Law  con- 
sisted of  the  principles  of  natural  justice  ;  as  the  Common 
Law  was  similarly  regarded,  it  was  an  easy  conclusion 
that  International  Law  was  part  of  the  Common  Law. 
When  the  American  colonies  attained  their  indepen- 
dence this  doctrine  was  still  prevalent.  Indeed,  Mr. 
J.  B.  Scott,  in  the  American  Journal  of  International 
Law,'  in  labouring  to  show  that  International  Law  is 
part  of  the  law  of  the  United  States,  rests  his  argument 
upon  the  fact  that  the  American  colonies  took  over  the 
Enorlish  Common  Law,  which  included  the  doctrine  that 


*  1907,   Part  II,  p.  852. 


I08  INTERNATIONAL   LAW. 

International  Law  was  part  of  itself.  It  has  been  pre- 
viously shown'  that  as  regards  English  Law  this  is  no 
longer  wholly  true.  In  the  following  chapter  it  will  be 
shown  that  the  doctrine  when  applied  to  the  United 
States  is  equally  doubtful. 


See  p.  I02. 


CHAPTER  VI. 

International   Law   and  the   Law   of  the 
United   States. 

67.  The  place  of  International  Law  in  the  law  of  the '*°  ^®"*'** 

-^  .  statement 

United  States  is  defined  with  a  rather  greater  exactness  poggibi^ 

than  it  is  in  English  Law.    Yet  it  is  important  not  to  be 

led  into  adopting  the  hasty  conclusion  that  the  question 

is  answered  beyond  all  doubt,  or  that  there  is  any  sharp 

mar- 

and  substantial  distinction  between  the  treatment  of  In- 
ternational Law  in  the  law  of  the  United  States  and  in 
that  of  England.  An  examination  of  the  judgments  in 
which  matters  affecting  mternational  rights  and  duties 
have  come  under  consideration  warrants  no  such  proposi- 
tion. Rather  will  it  appear  that  just  as  the  doctrine  so 
confidently  stated  in  some  quarters  that  International 
Law  is  "  part  of  the  law  of  England,"  is  as  a  proposition 
neither  wholly  true  nor  wholly  false,  and  can  be  received 
only  with  considerable  modification,  so  we  must  equally 
beware  of  making  any  such  sweeping  statement  in  the 
case  of  the  law  of  the  United  States. 

68.  Before  the  cases  are  examined,  it  may  be  well  to  incorpora- 
note  the  place  accorded  to   InternationaMLaw  In  the  |^°°  °^^^^^^^j 

Hbody  of  the  written  Constitution.  I'^w  by 

As  early  as  1781  we  find  that  an  Ordinance  of  Con- conBtitntioH. 


no  INTERNATIONAL    LAW 

gress'  laid  it  down  that  the  Commonwealth  was  born  into 
the  Family  of  Nations  and  was  subject  to  all  the  rights 
and  duties  incident  to  that  condition  "  according  to  the 
general  usages  of  Europe" — in  other  words,  that  the  In- 
ternational Law  of  the  time  was  then  binding  upon  it.  It 
seems  hardly  correct  to  rely  upon  this  as  an  enactment 
and  incorporation  of  International  Law  into  the  law  of 
the  land  ;  it  is  rather  the  statement  of  a  fact  of  life  as  a 
civilised  nation  which  has  long  been  emphasised  by 
lawyers. 

In  the  Constitution,  however,  of  1789  we  find  a  clearer 
expression  under  Art.  I,  s.  8.     Power  is  vested  in  Con- 
gress to  "  Define  and  punish  piracies  and  felonies  com 
'  mitted  on  the  high  seas,  and  offences  against  the  Law  of 
Nations.        ^ 

"  To  declare  war,  grant  letters  of  marque  and  reprisal, 
and  make  rules  concerning  captures  on  land  and  water." 
Under  Art.  II,  s.  2,  "The  President  shall  have  power, 
by  and  with  the  advice  and  consent  of  the  Senate,  to 
make  treaties,  provided  two-thirds  of  the  Senators 
present  concur." 

The  relation  in  which  International  Law  stands  to  the 
Common  Law  is  thus  left  undetermined,  and  a  general 
rule,  if  any  exists,  must  be  collected  from  the  cases. 

Treaties  69.  We  then  get  the  rule  that  a  treaty  validly  con- 

part  of  the    (luded  by  the  President  and  subsequently  ratified  in  a 

Law  of  the  ^  n  ^ 

Land. 

^  Journal  of  Congress,  VII,  185. 


AND  THE  LAW  OF  THE  UNITED  STATES      III 

certain  manner  requires  no  further  enactment  to  make  it 
binding  upon  citizens  ot  the  United  States. 

Dr.  Westlake  properly  pointed  out'  that  this  difference 
in  the  treatment  of  international  engagements  in  the  two 
countries  must  not  be  taken  to  mean  that  a  higher  value 
is  set  upon  the  binding  force  of  such  obligations  in 
American  than  it  is  in  English  law ;  but  rather  that  the 
law  of  that  country  gives  a  wider  power  of  making 
treaties  to  the  Executive  than  does  our  own.  How  this 
power  is  limited  and  defined  has  been  already  discussed. 
In  English  Law  it  would  seem  that  it  is  difficult  to 
imagine  a  case  in  which  a  treaty  could  be  enforced  in 
an  English  Court  so  as  to  bind  British  subjects  without 
the  intervention  of  an  Act  of  Parliament ;  except,  it 
seems,  in  a  Court  of  Prize." 

It  is  further  provided  by  Art.  VI  of  the  Federal  Con- 
stitution that  "  All  treaties  made  or  which  shall  be  made 
"under  the  authority  of  the  United  States  shall  be  the 
supreme  law  of  the  land,  and  the  judges  in  every  State  - 
shall  be  bound  thereby,  anything  in  the  Constitution  or 
laws  of  any  State  to  the  contrary  notwithstanding." 

70.  This   is   well    illustrated    in    the    early    case    of^*"*^' 
Jf^arr  v.  Hylton^    In  that  case  the  treaty  of  1783,  which 
ended  the  War  of  Independence,  was  under  discussion. 

'  See  above,  p.  59. 

-  Cf.  The  C/n7c,  T.L  R.,  Oct.  2-,rd,  rqi4;  the  Mane  Glaeser 
ih. 

^  3  Dall.   p.   236. 


% 


112  INTERNATIONAL    LAW 

Mr.  Justice  Chase  remarked  in  the  course  of  his  judg- 
ment:— 

"  If  doubts  could  exist  before  the  estabhshment  of 
the  present  national  government,  they  must  be  entirely 
removed  by  the  Sixth  Article  of  the  Constitution,  .  . 
There  can  be  no  limitation  of  the  power  of  the  people  of 
the  United  States.  By  their  authority  the  State  Consti- 
tutions were  made,  and  by  their  authority  the  Constitu- 
tion of  the  United  States  was  established.  .  .  A  treaty 
cannot  be  the  supreme  law  of  the  land,  that  is,  of  all 
the  United  States,  if  any  Act  of  a  State  Legislature 
can  stand  in  its  way." 

This  yields  the  further  proposition  that  a  treaty,  being 
embodied  into  the  Law  of  the  United  States,  overrides 
any  act  of  any  local  legislature.  Such  a  doctrine  must 
logically  follow  from  the  legal  apportionment  of  the 
powers  of  the  several  bodies  under  the  American  Consti- 
tution.' 

A  good  illustration  of  this  is  also  given  by  part  of  the 
head-note  to  Worcester  v.  State  of  Georgia,  1832, 
VI  Peters,  at  p.  520.    Tlie  relevant  words  are: — 

"  The  Acts  of  the  Legislature  interfere  forcibly  with 
the  relations  established  between  the  United  States  and 
the  Cherokee  nation,  and  the  regulation  of  which,  ac- 
cording to  the  settled  principle  of  our  Constitution,  is 
committed  exclusively  to  the  government  of  the  Union. 


'  Cf.  Hauernstein  v.  Lynham,  1879,  ^0°  U.S.  483,  where 
the  same  point  arose,  and  the  above  judgment  was  quoted  with 
approval. 


AND    THE    LAW    OF    THE    UNITED    STATES  II3 

"  They  are  in  direct  hostility  with  treaties,  repeated 
in  a  succession  of  years,  which  mark  out  the  boundary 
that  separates  the  Cherokee  country  from  Georgia,  guar- 
anteeing to  them  all  the  land  within  their  boundary 
and  solemnly  pledge  the  faith  of  the  United  States  to 
restrain  their  citizens  from  trespassing  on  it,  and  recog- 
nise the  pre-existing  power  of  the  nation  to  govern 
itself." 

71.  Since  the  American  Constitution  places  a  dul)  Treaty 

concluded  and  ratified  treaty  on  an  equality  with  an  Act  ^  *".  °". 

__ — _  -^  ^  -'  same  level 

of  the  Supreme  Legislature,  .it  must  follow  that  that  as  Act  of 
equality  will  be  consistently  pressed.  Jjist  as  the  prior  Act  ^°°^^®"- 
of  Congress  yields  to  a  later  one,  so  is  an  earlier  treaty  , 
werridden  by  a  later  Act  of  Congress  that  conflicts  with_ 
it,  and  an  Act  of  Congress  by  a  subsequent  and  con-  ^ 
flicting  treaty.     This  proposition,  self-evident  in  itself, 
and  flowing  from  the  very  terms  of  the  Constitution,  has 
been  further  amplified   and   well  illustrated  in  several 
ceses. 

72.  This  question  of  conflict  was  dealt  with  in  Foster  Foster  t. 
and  Elam  v.  Neilson.^     Here   the   discussion  turned 

upon  the  combined  effect  of  the  Treaty  of  Paris  of  1803 
between  France  and  the  United  States  and  certain  sub- 
sequent Acts  of  Congress  defining  the  powers  and  rights 
conferred  on  the  United  States  by  that  treaty.  The  fol- 
lowing sentences  from  the  judgment  of  Chief  Justice 

'  1829,  2  Pet.    p.  254.  I 


7 


I  14  INTERNATIONAL    LAW 

Marshall  draw  the  same  distinction  between  the  legal 
and  the  diplomatic  remedy  that  we  saw  drawn  by  Cock- 
burn,  C.J.,  in  Keyn's  case.'     The  Chief  Justice  says: — 

"  After  these  acts  of  sovereign  power  over  the  terri- 
tory in  dispute,  asserting  the  American  construction  of 
the  treaty  by  which  the  Government  claims  it,  to  main- 
tain the  opposite  construction  in  its  own  Courts  would 
certainly  be  an  anomaly  in  the  history  and  practice  of 
nations.  If  these  departments  which  are  entrusted  with 
the  foreign  intercourse  of  the  nation,  which  assert  and 
maintain  its  interests  against  foreign  Powers,  have  un- 
equivocally asserted  its  rights  of  dominion  over  a  country 
of  which  it  is  in  possession,  and  which  it  claims  under 
a  treaty ;  if  the  Legislature  has  acted  on  the  construc- 
tion then  asserted,  it  is  not  in  its  own  Courts  that  this 
construction  is  to  be  denied." 

And  later  on  he  says : — 
/  "  Our  Constitution'  declares  a  treaty  to  be  the  law  of 
the  land.  It  is,  consequently,  to  be  regarded  in  Courts 
of  Justice  as  equivalent  to  an  Act  of  the  Legislature 
whenever  it  operates  by  itself  without  the  aid  of  anv 
legislative  provision.  But  when  the  terms  of  the  stipu- 
lation impart  a  contract,  when  either  of  the  parties 
engage  to  perform  a  particular  Act,  the  treaty  addresses 
itself  to  the  political,  not  to  the  judicial  department ;  and 
the  Legislature  must  execute  the  contract  before  it  can 
become  a  rule  for  the  Court." 


See  above,   p.   50.  -  But  it  prevails  if  in  conflict  with 

treaty  {in  re  Dillon,  5  Moore  78). 


AND  THE  LAW  OF  THE  UNITED  STATES      II5 

The  Court  followed  the  various  Acts  of  Congress 
which  had  been  passed  subsequent  to  the  Treaty  and  in 
modification  or  definition  of  its  terms. 

On  a  very  similar  point,  d._C/.S.  v.  Arredondo, 
1832,  6  Pet.  and  U.S.  v.  Percheman,  1832,  7  Pet.   51. 

73.  Similar  language  was  used  in  the  case  of  Whit-  Whitney  y. 
ney  v. ^o b ertson,^  hy  Mr.  Justice  Field:  "The  Act^ggy 
of  Congress,"  he  said,  "  under  which  the  duties  were  col- 
lected authorised  their  exaction.  It  is  of  general  appli- 
cation, making  no  exception  in  favour  of  the  goods  of 
any  country.  It  was  passed  jifter  the  treaty  with  the 
Dominican  Republic,  2ind,  if_Jher£^j2£-jmy_conflict  be- 
tween the  stifulations  of  the  treaty  and  the  require- 
ments of  Ihc  law,  llir  latter  must  control.  A  treaty  is 
primarily  a  contract  between  two  or  more  in- 
dependent nations,  and  is  so  regarded  by  writers 
on  public  law\  For  the  infraction  of  its  pro- 
visions a  remedy  must  be  sought  by  the  in- 
jured party  through  reclamation  upon  the  other.  .  .  , 
By  the  Constitution  a  treaty  is  placed  on  the  same  foot- 
ing and  made  of  like  obligation  with  an  Act  of  legisla- 
tion. Both  are  declared  by  that  instrument  to  be  the 
supreme  law  of  the  land,  and  no  superior  efficacy  is  given 
to  either  over  the  other.  When  the  two  relate  to  the 
same  subject  the  Courts  will  always  endeavour  to  con- 
strue them  so  as  to  give  effect  to  both,  if  that  can  be 

'1887,  124  U.S. 


ii6 


INTERNATIONAL    LAW 


DistinctiOB 
between 
legal  and 
diplomatic 
Remedy 


done  without  violating  the  language  of  either;  but  if 
the  two  are  inconsistent  the  one  last  in  date  will  control 
the  other,  provided  always  the  stipulation  of  the  treaty 
on  the  subject  is  self-executing.  If  the  country  with 
which  the  treaty  is  made  is  dissatisfied  with  the  action 
of  the  legislative  department  it  may  present  its  com-"^ 
plaint  to  the  executive  head  of  the  Government,  and 
take  such  other  measures  as  it  may  deem  essential  for  the 
protection  of  its  interests.  The  Courts  can  afford  no 
redress.  Whether  the  complaining  nation  has  just  cause 
of  complaint  or  our  country  was  justified  in  its  legis-^,, 
lation  are  not  matters  for  judicial  cognisance." 

74.  Here  again  we  find  the  distinction  between  the 
legal  and  the  diplomatic  remedy,  and  a  firm  bridge  of 
doctrine  built  between  the  observations  of  Cockburn, 
C.J.,  in  Keyn's  case,'  on  the  one  hand,  and  the  judg- 
ments in  Mortens  en  v.  Peters'  on  the  other.  It  must 
also  be  noted  that  the  legislation  which  the  learned 
judge  speaks  of  as  being  necessary  to  give  effect  to  an 
executory  treaty  must  be  kept  distinct  from  the  legisla- 
tion which  is  necessary  when  by  the  Municipal  Law  of 
any  given  State  a  treaty  concluded  by  it  is  not  binding 
upon  its  subjects  without  an  Act  of  the  Legislature,  as 
is  necessary  in  certain  matters  according  to  the  Law 
of  England.  But  the  legislation  in  such  a  case  as  this 
is  necessary,  because  the  Municipal  Law  of  England 


See  above,  p.  50. 
See  above,  p,  51. 


AND    THE    LAW    OF    THE    UNITED    STATES  II7 

places  restrictions  upon  the  power  of  the  Executive, 
whereas  according  to  the  American  Constitution  the 
Executive  has  the  widest  power  of  binding  subjects  by 
treaty.  Thus  Art.  IX  of  the  Jay  treaty  of  1794  be- 
tween Great  Britain  and  the  United  States  enabled  the 
subjects  of  one  Power  to  hold  land  in  the  territory  of 
the  other.  This  came  into  operation  forthwith  in 
America  in  favour  of  British  subjects,  while  in  England 
the  Act  of  T)']  Geo.  Ill  was  necessary  to  confer  the 
same  privilege  upon  American  citizens.' 

75.  The  conflict  between  International  Law  (derived  '^^^  Panama 
from  treaty)  and  the  Municipal  Law  of  the  United  States  Dispute. 
assumed  a  practical  shape  in  the  controversy  between 
Great  Britain  and  the  United  States  over  the  Panama 
Canal.  It  is  not  material  here  to  specify  the  scope  and 
nature  of  the  dispute.  It  is  sufficient  to  note  that  the 
Hay-Pauncefote  treaty  of  September  i8th,  1901,  be- 
tween Great  Britain  and  the  United  States  declared  that 
the  Panama  Canal  should  be  free  and  open  to  the  vessels 
of  all  nations  without  discrimination  in  respect  of  traffic 
charges.  Under  s.  5  of  the  Panama  Canal  Act  of  Con- 
gress of  August  24th,  191 2,  an  exemption  from  tolls 
is  contained  in  favour  of  vessels  of  the  United  States.' 
We  have  seen  above  that  the  United  States  Constitu- 
tion   places  treaties   on    a    level    with    Acts    of    Con- 

'  See  Westlake  in  L.Q.R.,  igo6. 

-   For   a    full   discussion   of   the   whole   question,    see    Oppen- 
heim,  "The  Panama  Canal  Conflict,"  Camb.  1913. 


Il8  INTERNATIONAL    LAW 

gress ;  and  thus  treaties,  being  Acts  of  Congress,  for 
all  purposes,  an  earlier  treaty  is  overridden  by  a  later 
Act,  if  that  Act  be  in  conflict  with  it.  "  For  this  reason," 
says  Professor  Oppenheim,'  "  the  American  Courts 
cannot  be  resorted  to  in  order  to  have  the  question  de- 
cided whether  or  no  the  enactments  of  Section  5  of  the 
Panama  Canal  Act  are  in  conformity  with  Art.  Ill, 
No.  I,  of  the  Hay-Pauncefote  treaty. 


352 


let  of  76.   If  an  Act  of  Congress  overrules  a  previous  treaty 

Congress        inconsistent  with  it — if,  in  other  words,  it  overrules  Con- 
overrides  -IT  -IT  /         •       •  1 

Customary     ventional  International  Law — it  must  a  fortiori  overrule 

International  Customary  International  Law. 
*"■  In  the  case  of  The  N ereide''  Chief  Justice  Marshall 

said : — 

"  Even  in  the  case  of  salvage,  a  case  peculiarly  within 
the  discretion  of  Courts,  because  no  fixed  rule  is  pre- 
scribed by  the  law  of  nations,  Congress  has  not  left  it  to 
this  department  to  say  whether  the  rule  of  foreign  nations 
shall  be  applied  to  them,  but  has  by  law  applied  that 
rule.  If  it  be  the  will  of  the  Government  to  apply  to 
Spain  any  rule  respecting  captures  which  Spain  is  sup- 
posed to  apply  to  us,  the  Government  will  manifest  that 
will  by  framing  an  Act  for  the  purpose.  Till  such  an 
Act  be  passed  the  Court  is  bound  by  the  Law  of 
Nations  which  is  a  part  of  the  law  of  the  land." 

'  At  p.  42. 

"  Cf.  also  The  Kestor,  1901,  no  Fed.  432. 

■^   1815,  g  Cranch,  at  p.  423. 


AND  THE  LAW  OF  THE  UNITED  STATES      I  I9 

I  Mr.  J.  B.  Scott'  also  quotes  a  passage  from  Bishop's 
Criminal  Law  in  which  the  same  rule  is  laid  down : — 
"  Doubtless,  if  the  Legislature,  by  words  admitting  of 
no  interpretation,  commands  a  Court  to  violate  the  Law 
of  Nations,  the  judges  have  no  alternative  but  to  obey. 
Yet  no  statutes  have  ever  been  framed  in  form  thus  con- 
clusiv£riand  if  a  case  is  pim.a  facie  within  the  legisla- 
tive words,  still  a  Court  will  not  take  the  jurisdiction 
should  the  Law  of  Nations  forbid." 

That  is  in  complete  agreement  with  the  most  recent 
Enghsh  doctrine,  as  illustrated  by  Mortensen  v.  Peters 
in  the  Scottish  Courts." 

77.  The  English  rule  of  construction,  that  an  Act  of  Presumptioii 
Parliament  wilTbe    read   with    the   presumption    that  !^ j'^"  ^J" 
T^nglish  Law  is  not  in  conflict  with  the  Law  of  Nations,  congrMi. 
finds  a  parallel  m  the  Law  of  the  United  States.      In 
the  case  of  Murray  v.  The  Charming  Betsey^  the  Act  ^ 
of  February,   1800,  prohibiting  commercial  intercourse 
between  the  United  States  and  France,  was  under  con- 
sideration.    The  rule  of  construction  was  plainly  laid 
down  by  Chief  Justice  Marshall :  "  It  has  also  been  ob- 
served," he  said,  "  that  an  Act  of  Congress  ought  never 
to  be  construed  to  violate  the  Law  of  Nations  if  any__ 
other  possible  construction  remains,  and,  consequently, 
can  never  be  construed  to  violate  neutral  rights  or  to_ 


*  In  Amer.  Journal  of  Int.  Law,  1908,  at  p.  858. 

-   1906,  8  Fraser. 

■''    1804,  2  Cranch,  at  p.   118. 


I20  INTERNATIONAL    LAW 

affect  neutral  commerce  further  than  is  warranted  by  the 
Law  of.  Nations  as  understood  in  this  country.'^^  ' 

i 

Power  of  78..  It  has  been  already  noted  that  the  Constitution 

CongpcBs        gives  Congress  a  power  to  "  define  and  punish  piracies 

to  pQnish 

offences    Q  ^^^  felonies  committed  on  the  high  seas,  and  offences 

against  law    against  the  Law  of  Nations."       In    the    case    of    the 

\  United  States  v.  Smith^  the    prisoner    was    tried  for 

piracy  under  an  Act  of  Congress  of  March  3rd,  18 19, 

referring  to  the  Law  of  Nations  for  a  definition  of  that 

offence.  "1 

Customary  79.   The  position  in  the  Law  of  the  United  States  of 

International  customary  rules  of  International  Law  is  discussed  in 

law,  -^ 

"  Paqaete       *^^  Paquete  Habana   and   the    Lola^'       These    were 

Habana,"  two  fishing-smacks  captured  in  the  Spanish-American 
War  by  American  warships.  The  questions  for  the 
Court  were  (i)  whether  there  is  any  exemption  from  cap- 
ture for  such  vessels  in  International  Law,  and  (2) 
whether  that  law  is  part  of  the  Municipal  Law  of  the 
United  States  in  the  absence  of  treaty  or  Act  of  Con- 
'•  gress.    Mr.  Justice  Gray  said : — 

"  International  Law  is  part  of  our  law,  and  must  be 
ascertained  and  administered  by  the  Courts  of  Justice 
of  appropriate  jurisdiction  as  often  as  questions  of  right 
depending  upon  it  are  duly  presented  for  their  determi- 
nation.    For  this  purpose,  where  there  is  no  treaty,  and 

^   1820,  5  Wheaton,  p.   153. 
'  1899,   175  U.S.  677. 


1899. 


AND    THE    LAW    OF    THE    UNITED    STATES  12  1 

no  controlling  executive  or  legislative  Act  or  judicial  de- 
cision, resort  must  be  had  to  the  customs  and  usages  of 
civilised  nations  ;  and  as  evidence  of  these,  to  the  works  \ 
of  jurists  and  commentators,  who,  by  years  of  labour, 
research,  and  experience,  have  made  themselves  pecu- 
liarly well  acquainted  with  the  subjects  of  which  they 
treat.  Such  works  are  resorted  to  by  judicial  tribunals, 
not  for  the  speculations  of  their  authors  concerning 
what  the  law  ought  to  be,  but  for  trustworthy  evidence  I 
of  what  the  law  really  is."  Jj  | 

The  American  Court  was  thus  prepared  to  go  further 
than  was  Lord  Alverstone,  C.J.,  in  the  West  Rand  case.' 
It  will  be  remembered  that  he  declined  to  apply  any  rule 
of  International  Law  in  an  English  Court  which  had  not 
received  the  assent  of  Great  Britain,  or  the  assent  of  a 
preponderating  majority  of  civihsed  States.  He  rejected 
the  work  of  jurists  as  of  no  value  for  the  determination 
of  the  question  of  assent.  It  was  pointed  out  when  that 
judgment  was  analysed'  that  the  learned  judge  had  failed 
to  realise  the  radical  change  that  has  taken  place  in  the 
fundamental  conception  of  International  Law  and  of 
the  province  of  the  text-writer,  the  change  from  the 
region  of  speculation  to  that  of  practice.  The  modern 
writer  on  International  Law  merely  records  the  practice 
of  States ;  and,  if  that  practice  is  sufficiently  certain  and 
continuous,  he  deduces  a  rule  therefrom.  Hence  his 
work  may  well  be  evidence  of  that  practice.     It  is  the 

'  See  above,  p.  98. 
-  See  p.   100. 


122  INTERNATIONAL    LAW 

recognition  of  this  new  basis  that  makes  the  American 
judgment  just  cited  of  more  value  than  that  of  Lord 

Alverstone. 

Prof.  QQ^   Professor  Oppenheim,  in  his  monograph  on  the 

Oppenheim's  /-  i 

Yiew.  Panama  Canal,'  summarises  the  American  view  of  the. 

position  of  International  Law  in  relation  to  the  Munici- 
pal Law  of  the  United  States  as  follows :  "  Now  the 
practice  of  the  Courts  of  the  United  States  neither 
agrees  with  the  doctrine  of  the  former  nor  with  the  doc- 
trine of  the  latter  school  of  publicists,  but  takes  a  middle 
line  between  them."  Indeed,  it  considers  International 
Law  to  be  part  and  parcel  of  the  Municipal  Law  of  the 
United  States.  It  is,  however,  far  from  accepting  the 
maxim  that  International  Law  overrules  Municipal 
^Law :  it  accepts  rather  two  maxims,  namely,  first,  that 
International  Law  overrules  previous  Municipal  Law, 
and  secondly  that  Municipal  Law  overrules  previous 
International  Law.    .-., 

Mr.  81.   Mr.  W.  W.  Willoughby,  too,  in  an  article  in  the 

Wiiiooghby'B  "  American  Journal  of  International  Law,'"  dissents  from 

the  general  proposition  that  International  Law  is  part  of 

the  Law  of  the  United  States.     "  It  is  true,"  he  says, 

"that  these  Courts  [i.e.,  EngHsh  and  American]  adopt 

^   "The  Panama  Canal  Conflict,"  Cambridge,  1913,  pp.  40,  41. 

-  The  allusion  is  to  the  two  opposing  theories  that  Inter- 
national Law  overrules  Municipal  Law,  and  that  Municipal  Law 
overrules  International. 

'   1908,  p.  357. 


\ 


AND    THE    LAW    OF    THE    UNITED    STATES  1 23 

and  apply  established  principles  of  International  Law ; 
but  in  so  applying  and  enforcing  them  they  consider 
them  as  having  been  first  impliedly  adopted  by  the 
English  or  American  State,  as  the  case  may  be,  as  a 
portion  of  its  Municipal  Law." 

This  seems  a  just  and  accurate  statement  of  the  true 
relation  between  International  and  Municipal  Law; 
though  Mr.  Willoughby  seems  to  carry  his  doctrine  to  an 
extreme  length  of  artificiality  m  his  view  of  the  action 
of  the  American  Courts  in  holding,  in  the  Paquete 
Habana,  that  by  a  customary  rule  of  International  Law 
small  fishing  vessels  are  exempt  from  capture.  Com- 
menting  on  the  power  vested  by  the  Constitution  in 
Congress  of  defining  and  punishing  offences  against  the 
law  of  nations,  he  says :  "  The  effect  of  these  clauses 
which  recognise  the  existence  of  a  body  of  international  o 

laws  and  the  granting  to  Congress  of  the  power  to  punish  ^ 

offences  against  them  the  Courts  have  repeatedly  held  is   ^ 
to  adopt  these  laws  into   our   municipal  law  en  bloc, 
except  where  Congress  or  the  treaty-making  Power  has 
expressly  changed  them." 

From  this,  it  would  follow  that  the  American  Courts, 
in  pronouncing  for  the  exemption  of  the  fishing-vessels, 
went  upon  an  Act  of  Congress  and  not  upon  a  rule  of 
International  Law. 

Lastly,  one  very  important  distinction  should  be  borne 
in  mind.  We  have  already  seen  that  the  proposition 
that  International  Law  is  part  of  the  law  of  England  is, 
in  all  its  width  and  generality,  as  untrue  as  the  proposi- 


124  INTERNATIONAL    LAW 

tion  that  International  Law  is  part  of  the  law  of  the 
United  States.  But  even  if  this  were  true  without  any 
limit  or  modification  whatsoever,  it  would  only  be  true 
in  virtue  of  the  express  or  implied  rules  of  the  law  of 
those  States.  The  doctrine  that  International  Law  is 
part  of  the  Law  of  England  rests,  in  so  far 
"as  there  is  any  truth  in  it,  upon  the  law  of 
this  country  as  expressed  in  the  body  of  judicial 
precedents  which  we  call  the  Common  Law ;  and  so  far 
as  the  same  is  true  of  the  United  States,  upon  the 
^written  constitution  of  that  country  and  its  judicial  inter- ^ 
pretation.  Therefore,  the  position  of  International  Law  _, 
in  neither  of  these  States  is  such  as  to  support  the  wider 
contention  advanced  by  some  writers  that  International^ 
Law  is  a  law  superior  to  Municipal  Law,  and,  therefore, 
of  itself  incorporated  into  the  Municipal  Law  of  each 
State  in  such  a  way  as  to  overrule  any  provisions  of  that  ^ 
law  which  may  be  out  of  harmony  with  it/  International 
Law,  in  so  far  as  it  can  ever  be  said  to  be  part  of  the  law 
either  of  this  country  or  of  the  United  States,  occupies 
such  position  by  virtue  of  its  adoption  in  part  ijy  their 
Municipal  Law. 


'  See  Oppenheim,  "The  Panama  Canal  Conflict,"  Cambridge, 
1913.  P-  39- 


General  Conclusions 

(A)  International  Law  and  the  Law  of  England. 

1.  An  Act  of  Parliament    is    binding    certainly    on 

ordinary  Courts,  and  almost  certainly  on  Courts 
of  Prize,  although  it  be  in  conflict  with  In- 
ternational Law. 

2.  A  treaty    which    affects    the    private    rights    of 

British  subjects  is  not  binding  upon  ordinary 
Courts  without  an  Act  of  Parliament ;  nor  is  any 
stipulation  of  a  treaty  which  conflicts  with  exist- 
ing statute  law ;  but  in  a  Court  of  Prize  a  treaty 
is  deemed  to  add  to  the  stock  of  International 
Law  of  which  such  a  Court  will  take  notice. 

3.  It  is  not  certain   whether  an  Order  in   Council, 

which  is  in  conflict  with  International  Law,  will 
in  a  Prize  Court  be  enforced  at  the  expense  of 
that  Law ;  if  the  conflict  is  too  great  for  recon- 
ciliation it  seems  that  International  Law  will 
prevail. 

4.  In  the  absence  of  any  treaty  or  statute,  a  rule  of 

customary  International  Law  will  be  regarded  as 
part  of  the  law  of  the  land,  and  so  enforced  in 


126  GENERAL    CONCLUSIONS 

our  courts,  only  if  such  rule  has  received  the 
assent  of  this  country  in  practice,  unless  the  pro- 
position in  question  is  of  such  antiquity  and 
generality  that  the  assent  of  this  country  may 
be  presumed. 
5.  Enacted  law,  whether  it  be  an  Act  of  Parliament  or 
an  Order  in  Council,  will  be  construed  with  the 
presumption  that  the  enacting  authority  has  in- 
tended no  discrepancy  between  Municipal  and 
International  Law. 

(B)  International  Law  and  the  Law  of  the  United  States. 

1.  A    treaty    made    by    the    President    and  ratified 

with  the  consent  of  the  Senate  is  part 
of  the  law  of  the  land  and  on  the 
same  level  as  an  Act  of  Congress ;  so  that  an 
earlier  Act  of  Congress  may  be  overruled  by  a 
later  treaty  and  an  earlier  treaty  by  a  later  Act 
of  Congress. 

2.  An  Act  of   Congress   overrules  customary   Inter- 

national Law.  "^ 

3.  Customary  International    Law,  unless    and    until 

overruled  by  Act  of  Congress,  is  recognised  and 
applied  in  the  Courts;  and  for  this  purpose  the__ 
works  of  the  text-writers  are  regarded  as  afford; 
ing  evidence  of  what  is  International  Law. 

4.  An  Act  of  Congress  is  construed  with  the  presump-_ 

tion  that  no  violation  of  International  Law  has_ 
been  intended. 


INDEX 


PAGE 

Act  of  Parliament,  17,  23,  24,  29, 
30,  34-6,  39,  47,  48-58,  75-82, 
86-93,  III. 

Act  of  State,  66-7,  69-70. 

Alverstone,  Lord,  9S-103. 

Annapolis,  The,  37-8. 

Anson,  vSir  Wm.,  cited,  64. 

Assent,   Doctrine  of,  83    seq. 

Austin,  22,  23. 

Berlin,  The,  44,  loS. 
Blackburn,   Lord,  cited,  49,  50. 
Blackstone,  cited,  62,  79. 
Brett,  L.J.,  cited,  90. 

Bwvot  V.  Barbuit,  77,  99. 

Cession,  62-5. 
Chile,   The,  42,   III. 
Cobbett,  Pitt,  cited,  22. 
Cockburn,   vSir  A.,   50,  92-3. 
Coleridge,    Lord,  cited,  91. 
Common  Law,  17,  19,  22,  26,  34-6, 

39,  43,  57,  75-io5. 
Cook  V.  Sprigg,   97  (n). 
Cope  V.  Doherty,  37. 
Costa  Rica  Packet,  The,  51   (n). 

De  Haber  v.  Oueen  of  Portugal,  82 

(n). 
Denman,  J.,  89. 
Dicey,  Prof.,  cited,  86. 
Direct   U.S.    Cable   Co.    v.   Anglo- 

A  merican  Telegraph  Co.,  48-50. 
Don  Pantaleon  Sa,  Case  of,  56. 
Dunedin,  Lord,  cited,   51-2. 

Eliza,  The,  29. 

Ellenborou2:h,   Lord,    cited,    79-80, 

84-5- 


PAGE 

Envoys,   Privilege  of,   24,  54-8,  77- 

83- 
Erskine,  Lord,  47. 
Evans,  vSir  S.,  cited,  42,  43,  44,  45. 
Extradition  Acts,   18,  63. 

Fishing-vessels,    Immunity  of,  44, 

46,  120-1. 
Foreign    Enlistment    Act,    24,    53 

Foreign  Jurisdiction  Act,  24. 
Fox,  The,  33-6,  47. 

Gallatin's  Coachman,  Case  of,  58. 
Girolamo,  The,  36. 
Grotians,  14. 
Grove,  J.,  89-90. 

Hague  Conventions,  42,  44-6,  72-4. 
Hall,  W.  E.,  cited,  15 
Hardwicke,  Lord,  cited,  78. 
Heathfield  v.  Chilton,  78-9,  99. 
Heligoland,  Cession   of,  63,  65. 
Herschell,  T^ord,  cited,  70. 
Holland,  Prof.,  17,  23,  26. 

International   Law  : 
Basis  of,  14. 
Proof  of,  162,  103,  104-5. 

Kyllachy,    Lord,    cited,    53. 

Liesbct  van  den  Toll,  The,  44. 

Lmdley,  J.,  cited,   88-9. 

l.ola,  The,  44,  120-1. 

London,   Declaration  of,  46,  63-4. 

Lushington,    Dr.,   cited,  37-S. 

Macartney  v.  Garbutt,  82. 

Mackintosh,  vSir  J.,  cited,  32. 


128 


INDEX. 


PAGE 

Magdalena  Steam  Navigation  Co., 

V.  Martin,  56,  82  (n). 
Magna  Carta,   25. 
Maitland,    cited,   62-3. 
Mansfield,   Lord,  cited,   77-8,   78-9. 
Maria,  The,  27-S. 
Marie  Glaeser,  The,  43,  iii. 
Merchant   vShipping   Act,   37. 
Mersey,  Lord,  41. 
Mighell  v.  Sultan  of  Johore,  102. 
Mortensen  v.  Peters,  51-3,  57,  116, 

119. 
Mowe,  The,  44-5. 

Nabob  of  Carnatic  v.  E.  India  Co., 

97  (n)- 
Naturalisation   Acts,    24. 

Naturalists,  14,  76,  90,  100. 

Navigation  Laws,    31-2. 

Nicholl,  Sir  J.,  cited,   36. 

Oppeuheim,   Prof.,    cited,    15,    16, 

18,  22,  40-1,  60,  72,  118,  122. 
Orders  in  Council,  17,  33-6,  38,  39, 

42,  46-7,  63-4. 

Page-Wood,  V.C,  cited,   37. 
Paquete  Habma,  The,  44,  120-2. 
Paris,  Declaration  of,  43,  68. 
Parlement  Beige,  The,  67-9,  95. 
Phillimore,  vSir  R.,  cited,  38,  67-8, 

87-8. 
Positivists,   14,   76,  90,   100. 
Prize  Courts,  Law  of,  26-47,  63,  64, 

III. 

Ratification,  60  seq. 
Recovery,  The,  31-2. 
R.    V.    Keyn,  50-1,  82,   86-95,  100, 
102,   114,   116. 

vSalmond,   Prof.,  cited,    104-5,    106. 
vScott,  J.   B.,  cited,   21-2,  107. 
Service  v.  Casteneda,  82. 
vSteplien,    late    Mr.    Justice,    cited, 

19.  54- 

Stockdale  v.  Hansard,  81. 
Stowell    (Sir    Wm.    Scott),    cited, 
27-8,  29,  31-2,  33-6. 


PAGE 

Talbot,  Lord,  cited,  78. 

Territorial  Waters  Jurisdiction 
Act,   24,  81-2. 

Text-writers,  as  evidence  of  prac- 
tice, 92-3,  98-100,  lOI. 

Treaties,  17,  59-74. 

Triquet  v.  Bath,  77-8,  79,  99. 

United  States,  Law  of,  and  Inter- 
national Law,  109-124. 

Alverstone,    Lord,  121-2. 

Common   Law,    118,   120-2. 

Congress,  Act  of,  112, 
113,  114,  115,  118-20,  123. 

Constitution,  109-111. 

Foster  and  Elam  v.  Neil- 
son,  113-5. 

Kestor,  The,  118  (n). 

Murray  v.  The  Charming 
Betsey,    119-20. 

Nereide,   The,   118. 

Oppenheim,  Prof.,  cited, 
118,    122. 

Panama  Canal  Dispute, 
117-S. 

Paquete  Habana,  The, 
120-2. 

Treaties,   110-118. 

TJ.S.  V.  Arredondo,  115. 

U.S.  V.  Percheman,  115. 

U.S.  V.   Smith,   120. 

Ware  v.  Hylton,  11 1-2. 

Whitney     v.      Robertson, 

II5-7- 
Willoughby,        W.        W., 

cited,    122-3. 
Worcester      v.       Georgia, 

112-3. 

Vattel,  cited,  56. 
Viveash  v.  Becker,  79-80. 

Walker  v.  Baird,   69-70. 
Walsingha7n  Packet,   The,    29-30. 
Westlake,  cited,  20-1,  26-7,  39,  59- 

60,  66,   III. 
West   Rand  v.   The  King,   77,  93, 

95-103. 
Wolff  V.  OxhoLni,  83-6,   100. 


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